- Proposed Home Health Rule Affirms Medicare Coverage and Payment for Patients Who Will Not Improve and May Need More Care than the Norm
- Administrative Law Judges and Objective Medicare Appeals Jeopardized By Recent Executive Order
- Studies Differ Regarding Traditional Medicare and Medicare Advantage
- Health Care Sabotage – Navigators Face another Round of Cuts
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In the proposed rule, published in the Federal Register on July 12, 2018, CMS confirms that a patient’s condition does not need to improve for home health care to be covered by Medicare. CMS also acknowledges the following:
- There have been reports of difficulty accessing coverable home health care, especially when the patient’s condition is not expected to improve; and
- There is “confusion” among home health providers regarding possible payment for such care.
In the proposed rule, CMS addresses both patient coverage concerns and provider confusion over payment by describing a specific clinical example of how care for a patient could qualify for Medicare coverage and an additional outlier payment (in the example, the patient has ALS).
Further CMA analysis of the provisions of the proposed rule will be forthcoming.
 https://www.gpo.gov/fdsys/pkg/FR-2018-07-12/pdf/2018-14443.pdf, page 32377-32380.
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On July 10, 2018, the President signed an Executive Order undermining the impartial hiring of Administrative law Judges (ALJs). The order states that “conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ.” What this really means is that ALJs will now be hired directly by each individual agency, including CMS for Medicare appeals. This is a dramatic change from the current centralized system that selects applicants deemed qualified through a competitive examination and selection procedures administered by the Office of Personnel Management.
Advocates and legislators are concerned. Rep. John Larson of Connecticut says that Americans “deserve an impartial hearing by a highly-qualified, independent judge. But under the Administration’s new policy, they will face a judge beholden to ideology and politics rather than one selected through a competitive process designed to ensure qualification and neutrality.”
By statute, Medicare ALJs must be independent of CMS. The Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA), Public Law 108-173, §931 transferred the function for Medicare ALJ appeals from the Social Security Administration to the Department of Health and Human Services. The law specifically states that ALJs are to be “organizationally and functionally independent of CMS.” (5 USC §554(d); 70 Fed Reg 11420-499 (March 8, 2005). The Executive Order conflicts with this statutory requirement.
The Executive Order’s tie of ALJ appointments to CMS does not bode well for Medicare beneficiaries who seek a fair, independent review of Medicare coverage denials. The Center for Medicare Advocacy’s experience with thousands of Medicare appeals demonstrates that the lower levels of appeal are all but rubber stamps of Medicare denials. The ALJ level of appeal is the only real chance for beneficiaries to obtain an independent review. The fairness and objectivity of the appeals process will be gravely damaged by authorizing CMS to appoint its own ALJs, replacing current objective examination and competitive processes.
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Researchers studying patients with hip fractures found that patients with Medicare Advantage (MA) plans have shorter stays in skilled nursing facilities (SNFs) and receive less rehabilitation than patients in traditional Medicare, but are, nevertheless, less likely to be readmitted to an acute care hospital within 30 days or to become long-term care residents. These findings are inconsistent with findings in prior recent studies, discussed below, by some of the same researchers.
This study found that MA patients with hip fractures received care and services in a SNF for 36.9 days, compared to 44.7 days for patients with traditional Medicare, and that the MA patients received 12.1 fewer minutes of rehabilitation per day than patients in traditional Medicare. Their study documented that patients in traditional Medicare received 462.8 more minutes of therapy in up to the first 40 days of their SNF stay, compared to MA patients. The retrospective cohort study looked at 75,554 beneficiaries with MA plans and 211,296 beneficiaries in traditional Medicare who went to a SNF between January 1, 2011 and June 30, 2015. The study also looked at the patients for 180 days following their SNF stays.
The researchers, who had hypothesized that MA beneficiaries would have worse outcomes than beneficiaries in traditional Medicare, offer two explanations for their counter-intuitive findings: (1) “MA plans encourage the use of narrow networks of efficient SNFs” and (2) case managers employed by MA plans monitor beneficiaries’ therapy and status while in the SNF, making it “possible for MA plans to be actively involved in the discharge planning process.”
The Center for Medicare Advocacy is skeptical about these explanations. With respect to the first point, MA plans’ “narrow networks” generally include lower quality nursing facilities. In earlier research, two of the researchers involved in the study discussed here found that beneficiaries enrolled in MA plans were admitted to SNFs with lower ratings on CMS’s Five Star Quality Rating System. This 2018 study also reported that MA beneficiaries went to SNFs with higher rates of rehospitalization than beneficiaries in traditional Medicare. In addition, one of the study’s authors co-authored another earlier study that found that the increased numbers of therapy services at SNFs received by residents with hip fractures between 2000 and 2009 led to an increased likelihood of being discharged home. In the 2016 study, researchers reported, “our estimate of a 3-percentage-point increase in the likelihood of being discharged to home for every additional hour of therapy suggests the possibility that the increased duration of therapy services was an important contributor to the increased rate of discharge to home for patients after hip fracture.”
With respect to the second point, if additional discharge planning is actually provided by MA plans and helps assure that SNF residents with hip fractures can successfully return to, and remain in, the community, such additional discharge planning services should be provided to all residents in Medicare, those in traditional Medicare as well as those in MA plans.
 Amit Kumar, Momotazur Rahman, Amal N. Trivedi, Linda Resnik, Pedtro Gozalo, Vincent Mor, “Comparing post-acute rehabilitation use, length of stay, and outcomes experienced by Medicare fee-for-service and Medicare Advantage beneficiaries with hip fracture in the United States: A secondary analysis of administrative data,” PLoS Med 15(6):31002592, https//doi.org/10.1371/journal.pmed.1002592, available at http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1002592.
 David J. Meyers, Vincent Mor, Momotazur Rahman, “Medicare Advantage Enrollees More Likely To Enter Lower-Quality Nursing Homes Compared To Fee-For-service Enrollees,” Health Affairs 37, No. 1 (2018): 78-85. See CMA, “Medicare Advantage Enrollees Have Fewer SNF Options than Traditional Medicare Beneficiaries” (CMA Alert, Jan. 24, 2018), https://www.medicareadvocacy.org/medicare-advantage-enrollees-have-fewer-snf-options-than-traditional-medicare-beneficiaries/.
 Hye-Young Jung, Amal N. Trivedi, David C. Grabowski, Vincent Mor, “Does More Therapy in Skilled Nursing Facilities Lead to Better Outcomes in Patients With Hip Fracture?” Phys Ther. 2016; 96-81-9, https://academic.oup.com/ptj/article/96/1/81/2686383.
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Last year, we highlighted how the Administration cut funding for Affordable Care Act (ACA) outreach and enrollment assistance. They are at it again. This week it was reported that the Administration is slashing even more funding for organizations called “navigators” that assist people who need health insurance. The Washington Post reports that for the upcoming enrollment period the funding for navigators will be cut from $36.8 million to $10 million. This is on top of the huge cuts navigators faced last year, and the 90% cut for overall ACA advertising and outreach.
To make matters even worse, organizations that apply for the navigator grants will be “expected” to promote inadequate insurance such as Association Health Plans and short-term plans. As the Post states “Until now, the grants have been used only to help people choose and buy ACA health plans or to help steer people with low incomes toward Medicaid.” To push navigators to promote junk insurance that will drive up premiums, weaken critical consumer protections and won’t cover basic health care services is unconscionable.
We call on the Administration to fully fund navigators, restore funding for outreach and enrollment assistance, and provide consumers with the assistance they need during the coming open enrollment period.