Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

May 2017 – House Passes AHCA, Updates on Home Health, SGD’s & Other Issues

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HEALTH REFORM: HOUSE PASSES AMERICAN HEALTH CARE ACT (AHCA)

On May 4, 2017, the U.S. House of Representatives passed the American Health Care Act (AHCA) by a vote of 217-213.  The bill will now be taken up by the Senate.

American Health Care Act (AHCA): Impact on the Affordable Care Act, Medicare and Medicaid

The House vote proceeded despite not having an updated Congressional Budget Office (CBO) score to account for recent changes to the bill.  The most recent CBO report highlighted the devastating impact of the original AHCA bill. In addition to eliminating tax increases imposed by the Affordable Care Act (ACA), the CBO found, among other things, that AHCA would:

  • leave 24 million people uninsured by 2026;
  • increase premiums and out-of-pocket costs, particularly for older adults and individuals with lower incomes;
    • allow plans to charge older people five times as much as younger ones, and allows states to waive that rule and establish an even higher ratio;
  • cut Medicaid by $839+ billion over the next ten years;
    • phases out enhanced funding for Medicaid expansion, imposes either a block grant or per capita caps;
  • reduce Medicare’s economic stability by about four years;
  • allow states to waive community rating requirements for individuals who do not maintain continuous coverage (insurers can underwrite based on health status for one year if state establishes a high-risk pool)
  • allow states to waive “essential health benefits,” (EHB) the basic set of benefits, including maternity care, emergency services, preventive services, mental health care, and hospitalizations, which all insurers currently must offer; and
  • allow employer-based plans to pick from any of the 50 states’ EHB, any one of which could roll back the ACA ban on insurers setting annual and lifetime limits on coverage.

See the Statement of the Center for Medicare Advocacy on the passage of AHCA in the House: House Passes American Health Care Act – Not American in Spirit or Health Care in Substance May 4, 2017

See detailed chronology re: AHCA and summary by Professor Timothy Jost in Health Affairs: House Passes AHCA: How It Happened, What It Would Do, And Its Uncertain Senate Future

Next Up: The Senate  

The bill now moves to the Senate.  Outstanding questions include:

  • How much might the bill be altered?
  • Will the bill meet Senate budgetary rules preventing a filibuster?
  • How many Republicans might not support the bill? (The GOP controls 52 seats, and can only afford two “defections” as Vice President Pence could break a 50-50 tie.)

See, e.g., “Senate GOP vows big changes for ObamaCare bill”, The Hill, May 5, 2017: http://thehill.com/homenews/senate/332025-senate-gop-vows-big-changes-for-obamacare-bill.

UPDATE ON CMA HOME HEALTH ACCESS INITIATIVE

The Center continues to hear from people who meet Medicare coverage criteria for the Medicare home health benefit but who are unable to access care, or the appropriate amount of care.  After continuing to research and analyze the extent of the access problems, it is clear that the home health access issues most significantly impact the most vulnerable populations, those with long-term and chronic conditions.

Request for Stories That Impact Medicare Home Health Care Access:

The Center has created a repository for stories about home health care access barriers at https://www.medicareadvocacy.org/submit-your-home-health-access-story/. We seek experiences of people who have been unable to obtain services for which they are legally eligible. We would also like to hear from people who have been unable to remain at home and are forced to choose care in an institution because they cannot obtain adequate home care services. These stories continue to prove valuable with members of the administration, congress and the press to illustrate the injustice and hardship caused by lack of access to home care. We encourage you to direct people to the story repository link to share their experiences.

CMA Issue Brief Series: Medicare Home Health Care Crisis

  1. Overview – The Crisis in Medicare Home Health Coverage and Access to Care (4/19/2017)
  2. Medicare Home Health Coverage, Legally Defined (5/3/2017)
  3. Medicare Coverage Is Based On a Need For Skilled Care – Improvement Is Not Required
  4. Misleading and Inaccurate CMS Home Care Publications
  5. The Home Care Crisis: An Elder Justice Issue
  6. Beneficiary Protections Are Lacking In Home Health Provider Conditions Of Participation
  7. Barriers to Home Care Created by CMS Payment, Quality Measurement, and Fraud Investigation Systems
  8. Proposed CMS Systems Will Worsen the Home Care Crisis
  9. A Further Examination of the Home Care Crisis: Published Articles and Statistical Trends
  10. Strategic Plans to Address and Resolve the Medicare Home Care Crisis

The Center recently published Part Two of a Ten-Part Home Health CMA Issue Brief Series to be released periodically in the weekly CMA Alerts. The series examines and informs work to resolve the growing crisis in access to Medicare home health coverage and necessary care.  Read the CMA Issue Brief Series at https://www.medicareadvocacy.org/cma-issue-brief-series-medicare-home-health-care-crisis/

New Medicare Home Health Handbook

For the first time in seven years, Medicare has published a new Handbook for beneficiaries on the Home Health benefit. https://www.medicare.gov/Pubs/pdf/10969-Medicare-and-Home-Health-Care.pdf. After reviewing the new version, the Center discovered inaccurate and misleading information about eligibility and coverage. The Center is working with CMS to recommend edits. If you would like to know more and possibly join on to our suggested edits, please contact Kathy Holt at KHolt@MedicareAdvocacy.org.

New CMA Infographic on the Medicare Home Health Benefit: https://www.medicareadvocacy.org/wp-content/uploads/2017/05/HH-InfoGraphic-00249134xC6348.pdf

For general information on the Medicare home health benefit, reference the Center’s website at: https://www.medicareadvocacy.org/medicare-info/home-health-care/. 

UPDATE ON SPEECH GENERATING DEVICES (SGDs)

For six months immediately prior to the effective date of the Steve Gleason Act (April 1, 2015 to September 30, 2015), speech generating devices (SGDs), which are uniquely configured for each user, were covered by Medicare via a capped rental payment category. Under CMS rules, if an SGD user resided for more than a brief period of time in a nursing home, hospice or hospital, Medicare payment for the SGD stopped. Confusion and harm ensued. Nursing homes, hospice programs and hospitals did not and could not supply beneficiaries with a uniquely configured SGD substitute. These most vulnerable individuals had to go without SGDs, leaving them unable to communicate. Some died without being able to say goodbye.

Section 3 of the Steve Gleason Act of 2015 removed the rental cap for durable medical equipment under Medicare for a three year period with respect to speech generating devices. In pertinent part, it moved SGDs to a Medicare payment category and it amended Section 1834(a)(2)(A) of the Social Security Act (42 U.S.C. 1395m(a)(2)(A)(3)(iv) as follows, “in the case of devices furnished on or after October 1, 2015, and before October 1, 2018, which serves as a speech generating device or which is an accessory that is needed for the individual to effectively utilize such a device.”

It is only eighteen months away from the sunset date; individuals throughout the country, who have no other means of speaking, worry that the law will expire.  Ongoing and permanent access to Medicare coverage for SGDs would ensure individuals who medically qualify for an SGD would be able to continue communicating, even if they had to leave home to live in a nursing facility, hospice or hospital. Allowing this provision of the Steve Gleason Act of 2015 to expire would create substantial access barriers for those who use SGDs and who are in nursing facilities, hospice or hospitals – at a time when the need for communication with providers and caregivers is critical.  

The Steve Gleason Enduring Voices Act of 2017 would revise the Steve Gleason Act of 2015 (114th Congress S. 984) by removing the sunset date, currently identified in law as October 1, 2018.  By revising the Steve Gleason Act of 2015 to remove the sunset date, beneficiaries with ALS, MS, Parkinson’s disease, paralysis, cerebral palsy and other debilitating conditions will be assured that Medicare coverage for speech generating devices (SGD) and related accessories will continue to be available.

UPDATE ON PRE-CLAIM REVIEW AND PRIOR AUTHORIZATION

The Center continues to be concerned that Medicare programs requiring pre-claim review or prior authorization too often lead to prior denial of services or equipment. It is important to determine if pre-claim review or prior authorization is working for beneficiaries or if it is creating access problems. If you know a Medicare beneficiary who has been required to wait for prior authorization or go through a pre-claim review procedure in order to receive Medicare covered services, supplies or equipment, please share your experiences on the process and the outcome. These stories help the Center advocate for you and provide valuable feedback to CMS.

Prior Authorization/Pre-Claim Review Story forms may be found at: http://www.eSurveysPro.com/Survey.aspx?id=fbca7fae-1ce6-4995-a510-4421517ddca1

OBSERVATION STATUS UPDATE  

MOON Notice is Now Required

As discussed during previous Alliance calls, as of March 8, 2017, hospitals are required to give written and oral notice to Medicare patients when they are placed in “outpatient” observation status for 24 hours and are not formally admitted as inpatients.  The written notice is called the Medicare Outpatient Observation Notice (MOON).

Query: are advocates seeing these notices?

Legislation to Count All Time in the Hospital Toward Medicare 3-Day Qualifying Stay Reintroduced

The Improving Access to Medicare Coverage Act of 2017 (S. 568/ H.R. 1421) was reintroduced in the House and Senate on March 8, 2017.The legislation would count all time spent in the hospital, whether inpatient or outpatient, for purposes of satisfying the three-day hospital requirement for Medicare coverage of care in a skilled nursing facility.The legislation would resolve the biggest financial risk that observation status causes Medicare beneficiaries.

ADVANCE NOTICE OF PROPOSED RULEMAKING RE: MEDICARE REIMBURSEMENT FOR SKILLED NURSING FACILITIES

The Centers for Medicare & Medicaid Services (CMS) issued an Advance Notice of Proposed Rulemaking that would replace the current Medicare reimbursement system for skilled nursing facilities, called Resource Utilization Groups (RUGs-IV), with a new Resident Classification System, Version I (RCS-I).  81 Fed. Reg. 20980 (May 4, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-05-04/pdf/2017-08519.pdf.  RCS-I replaces the two case-mix categories (nursing, which includes non-therapy ancillaries; and therapy, which includes physical, occupational, and speech therapy) with four case-mix categories (nursing, non-therapy ancillaries, physical and occupational therapy, and speech therapy), each with its own case-mix adjustments.  The system pays higher rates at the beginning of a resident’s stay, adjusting rates downward as a Medicare-covered stay continues.

CMS’s own description of the effects of the new system – in two tables called Impact Analysis, one on residents and the other, on facilities – indicates that SNFs would receive higher reimbursement if the provided 15 or fewer days of Medicare coverage and only one form of therapy (not three).  Medicare reimbursement would also be higher if 50-75% of a SNF’s Medicare days were billed as non-rehabilitation.  In contrast, Medicare reimbursement would be lower for SNFs providing care to the oldest residents (age 90+), to residents receiving three types of therapy, or to residents having 31 or more days of care paid by Medicare.

Comments are due June 26.

LITIGATION UPDATE

  • Barrows v. Price (formerly Bagnall v. Sebelius, Barrows v. Burwell), No. 3:11-cv-1703 (D. Conn.) (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.

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.  If the Secretary has established criteria for inpatient hospitalization, plaintiffs have an interest that is protected by the Due Process Clause and thus they may be entitled to notice and opportunity to appeal their placement on observation. Plaintiffs received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. 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 is continuing to provide invaluable pro bono assistance.

After briefing was complete, a hearing on cross motions for summary judgment on the protected property interest issue and defendant’s supplemental motion to dismiss was held on December 15, 2016. The court ordered supplemental briefing on several issues, which was filed on January 17, 2017. On February 8, 2017, the court issued a decision denying both motions for summary judgment and largely denying the government’s motion to dismiss.  The court found that all plaintiffs have standing and none of their claims was moot, even though some have passed away and some have resolved their underlying individual claims. It decided that factual disputes precluded summary judgment on the property interest question, though it did note that CMS considers the billing of hospitalizations as inpatient or observation to be a regulatory matter, under the authority of the Secretary, as opposed to a clinical decision. The court also found that while a treating physician’s status order plays a “role” in Medicare’s review of a hospital claim, it is not dispositive or even presumed to be correct.

As for the motion to dismiss, the court found that plaintiffs have plausibly alleged the other two aspects of a due process claim: state action (in the form of pressure on providers by CMS) and inadequacy of existing procedures (it is undisputed that there is currently no appeal method for patients placed on observation status). The court did find that plaintiffs’ claim for expedited notice is now moot due to the new requirements being implemented under the NOTICE Act (“MOON” notice). The parties filed an updated plan for further discovery as plaintiffs continue to press their due process claim.

Update: Plaintiffs filed a renewed motion for class certification on March 3, 2017, and it was fully briefed as of May 7, 2017. The court has scheduled oral argument on the class motion for June 13, 2017.

 

  • Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days of the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut. The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing. The parties also conducted discovery. In March 2016 the court preliminarily approved a settlement and notice to the class was posted.

A Fairness Hearing was held on August 1, 2016 and the Court granted final approval of the settlement agreement. The settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants, and to address any complaints or questions concerning the processing of those appeals. OMHA will also introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals.

On September 1, 2016 as part of the settlement, OMHA established a toll-free Beneficiary Help Line: (844) 419-3358.  This line, which is staffed by representatives of OMHA, will address inquiries about ALJ appeals being pursued by Medicare beneficiaries. The Center urges anyone pursuing a beneficiary appeal who believes the appeal is not receiving timely attention to call the Beneficiary Help Line. The expectation is that a call to this line will help resolve delays in cases that are eligible to be prioritized. The Beneficiary Help Line is staffed from 8:00 a.m. to 4:30 p.m., Eastern Time. If calling at other times or if the OMHA Beneficiary Help Line staff are assisting other callers, OMHA instructs callers to leave a voicemail. Please report your experiences using the Help Line to the Center at: abers@medicareadvocacy.org.

As of November 1, 2016 CMS updated scripts for 1-800-Medicare to highlight the OMHA beneficiary prioritization policy for beneficiary callers and to refer them to the toll-free OMHA Beneficiary Help Line if they have questions about filing appeals with OMHA or about ALJ appeals that are pending with OMHA. OMHA also posted the beneficiary appeals data required by the settlement on their website at http://www.hhs.gov/about/agencies/omha/about/current-workload/beneficiary-appeals-data/index.html. The data shows beneficiary appeals now being processed within or very close to the 90-day statutory time period.

In late January 2017 the Office of Medicare Hearings and Appeals issued a new ALJ request form, the OMHA-100, which is a unified request for hearing and review and can be used for all appeals to OMHA.  As part of the settlement, the form allows beneficiaries and enrollees to self-identify, making it easier for these claims to be classified as beneficiary appeals and given priority for processing. CMS has also issued instructions to appeal contractors that deal with reconsiderations (the level below ALJ hearings) to begin using revised appeal instructions that include plain-language instructions about OMHA’s beneficiary mail-stop as well as information on the beneficiary help-line that has been established at OMHA.  The OMHA-100 is available at: https://www.hhs.gov/sites/default/files/OMHA-100%20Request%20for%20Hearing%20or%20Review%20of%20Dismissal%200329.pdf.

 

  • 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 have been meeting twice a year to discuss problems with implementation and possible solutions, and are in regular contact between meetings.

On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the settlement agreement. The filing came after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.

If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.” Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage.

The court announced its decision on the Motion for Resolution of Non-Compliance 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.” The parties negotiated but could not come to agreement on what a Corrective Action Plan should entail.  The court then ordered each party to submit a brief explaining and justifying their proposed corrective action plans, as well as a response to the other party’s plan.

On February 2, 2017, the court released a decision ordering CMS to carry out a Corrective Action Plan to remedy noncompliance with the Settlement. 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. The government was given an opportunity to object to the language of the corrective statement, and the parties negotiated final wording which was submitted to the court.  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.” The government must certify that it has complied with the Corrective Action Plan by September 4, 2017.

Update: In April 2017, pursuant to the court order, plaintiffs’ counsel submitted suggestions to the government for the Frequently Asked Questions to be included on the new Jimmo webpage.

 

  • Sherman v. Burwell (formerly Olsen-Ecker v. Burwell), No. 3:15-cv-1468 (D. Conn.) (Lower level Medicare appeals) On October 9, 2015, the Center filed a complaint in United States District Court in Connecticut against Sylvia Mathews Burwell, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Medicare beneficiaries seeking home health care coverage, and the named plaintiff represents beneficiaries who have received the usual “rubber stamp” denials at redetermination and reconsideration. The plaintiff also filed a motion for class certification, and the government filed a motion to dismiss. Written discovery was served but responses were stayed while the motion to dismiss was pending. Oral argument was held on February 29, 2016.

On August 8, 2016, the judge largely denied the government’s motion to dismiss and granted plaintiff’s motion for certification of a nationwide class. The court concluded that it had jurisdiction and decided that the case was not moot even though plaintiff’s claim had ultimately been approved. The judge dismissed the statutory claim, but found that plaintiff had stated a valid claim for relief under the Due Process Clause. He found plaintiff’s claim of policies or practices causing the denial rate sufficiently plausible to allow the case to continue to discovery. The judge also certified a nationwide class of Medicare beneficiaries of home health care services who had received adverse decisions at the first two levels of appeal on their Part A or Part B claims, and who had received an initial adverse initial determination on or after January 1, 2012. 

Plaintiffs and the Secretary each served discovery and provided written responses and document production. Plaintiffs are conducting depositions and discovery is expected to continue through the summer of 2017.

 

  • Ryan v. Burwell, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015. Written discovery was served.

The government filed a motion for summary judgment in November 2016 and plaintiffs filed a cross motion and responded in December.  However the parties have now re-entered settlement talks and have postponed further briefing while those negotiations proceed.

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