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  1. CMS Administrator Acknowledges that Prior Inpatient Hospital Rules Do Not Make Sense
  2. Government Watchdog Report Outlines Problems with Current Medicare Plan Finder As New Version Awaits Debut
  3. Short-term Health Plans: Goldmines for Insurance Companies, Junk for Enrollees
  4. Annual Surveys at Nursing Facilities Are Essential To Protect Residents
  5. CMA Webinar Schedule for 2019-2020

CMS Administrator Acknowledges that Prior Inpatient Hospital Rules Do Not Make Sense

Medicare requires beneficiaries to have a three-day inpatient hospital stay in order to qualify for skilled nursing facility (SNF) care. Unfortunately, too many beneficiaries continue to be classified as hospital outpatients on observation status, thereby eliminating a beneficiary’s ability to receive Medicare-covered SNF care. In a recent tweet, Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma acknowledged that the three-day inpatient hospital stay rule does not make sense.

The Center for Medicare Advocacy agrees with Administrator Verma and is ready to work with CMS to eliminate this obstacle to necessary care.


Government Watchdog Report Outlines Problems with Current Medicare Plan Finder As New Version Awaits Debut

In late July 2019, the General Accounting Office (GAO) issued a report entitled “Medicare Plan Finder: Usability Problems and Incomplete Information Create Challenges for Beneficiaries Comparing Coverage Options” (GAO-19-627).

In short, according to the Report, “[t]he Medicare Plan Finder (MPF) website—a primary resource for comparing Medicare coverage options—is difficult for beneficiaries to use and provides incomplete information, according to stakeholders and research studies.” The Center for Medicare Advocacy was among the stakeholders interviewed for this Report.

As noted by House Ways & Means Chairman Richard Neal, who requested the GAO Report, “[g]overnment selection tools should offer clear guidance in understandable language to ensure users are able to find the coverage that works best for them. Choosing the wrong plan can have real, negative consequences for beneficiaries, like higher out-of-pocket costs or limited access to providers.”

The Centers for Medicare & Medicaid Services (CMS) plans to introduce a revised version of the MPF prior to the upcoming Annual Coordinated Election Period (ACEP) – the period during which individuals can make coverage elections for the following year between October 15th and December 7th.  The GAO Report notes that a “public preview phase” is scheduled for early August 2019, “with the goal of routing 100 percent of users to the redesigned MPF by mid-August.” CMS notes that “[t]he full launch, scheduled for October 1, 2019, will route all users to the redesigned MPF, and they will no longer use the legacy MPF.” As of the date of this Alert, August 8, 2019, the revamped MPF does not appear to be publicly available.

This roll-out of a new MPF occurs with a backdrop of significant Medicare changes effective in 2020 that will make enrollment decisions even more challenging (e.g., the expansion of supplemental benefits in Medicare Advantage for individuals with chronic conditions and a restriction on the type of Medigap policies that can be sold to individuals who are eligible for Medicare after January 1, 2020).  At the same time, CMS outreach and enrollment materials are no longer a neutral presentation of all Medicare options. As the Center has documented elsewhere, since the Fall of 2017 CMS’ outreach and enrollment materials have encouraged beneficiaries to choose a private Medicare Advantage plan over traditional Medicare, instead of objectively presenting enrollment options.

Significant Findings by GAO

Among other findings, the Report states that the Medicare Plan Finder currently:

  • “Requires navigation through multiple pages before displaying plan details,
  • Lacks prominent instructions to help beneficiaries find information, and
  • Contains complex terms that make it difficult for beneficiaries to understand information.”

In response, CMS noted that it is redesigning the MPF to, among other things, “make it more usable for beneficiaries … improve the navigation of MPF by providing more prominent explanations on how to use [it]; reduc[e] the steps users must take to get a more detailed coverage information … [allow users to] more easily switch between” different topics and “improv[e] the filter and sort functions”.

With respect to the current MPF, the GAO Report notes that cost estimates on the plan results pages are incomplete because they do not adequately account for the option of Medigap coverage. According to the Report, “the redesigned MPF will allow beneficiaries to do estimated cost comparisons of MA to all their original Medicare options, such as original Medicare with a Medigap plan and a prescription drug plan.”

Additionally, there is a lack of information concerning MA plan provider networks. “According to a CMS-sponsored study” notes the Report, “determining if specific providers are in an MA plan provider network is a key factor for beneficiaries when making coverage decisions, and beneficiaries stated in user testing that they must have this information.” MA provider directories, however, will not be part of the new MPF, at least initially. According to GAO, “CMS officials also told us that they are currently examining how to integrate MA plan provider information, but this is not part of the redesigned MPF being released in August 2019. The officials said they are working with the plans to develop requirements to help support the integration of provider directories into future versions of MPF.”

What Role Will Coverage Tools Play?

According to CMS, the MPF will be migrating from a platform primarily used to compare Medicare Advantage and Part D plans to one that will more broadly help compare coverage options, including the choice between traditional Medicare and MA. According to GAO, “CMS plans to provide more information to [sic] the redesigned MPF to help beneficiaries understand their coverage options and decide whether original Medicare or MA is right for them.”

Described in the GAO report as “additional decision support tools for beneficiaries,” the website currently includes several tools that are promoted as assisting individuals in making such choices. The Center for Medicare Advocacy and others have expressed concern regarding the accuracy of such tools. As discussed in a November 2018 CMA Alert, the Center and the Medicare Rights Center (MRC) sent a joint letter to CMS expressing concerns with these tools, among other things. The letter stated that the Compare Coverage Options tool “may inappropriately and prematurely encourage individuals to enroll in MA – by making overly-broad suggestions to do so when more nuance is required, and by failing to present individuals with the full array of Medicare coverage options.” For more details about these concerns, see the Center’s Alert of October 5, 2018.

According to the GAO Report, however, it appears that the revised MPF will make even greater use of such tools:

Officials also told us that CMS is incorporating the functionality of the additional decision support tools currently available on the MPF landing page – Help with Your Medicare Choices and Estimate Medicare Costs – into the redesigned MPF to help beneficiaries understand their coverage options and compare their estimated costs across these options. In June 2019, CMS officials stated these additional tools will also continue to appear as separate links on the MPF landing page.

Will CMS Materials Continue to Inappropriately Steer People Toward Medicare Advantage?

As noted in the GAO Report, “[a]s a primary source of information to compare Medicare coverage options, CMS’s goal is for MPF to be a trusted and neutral resource for Medicare beneficiaries, according to agency officials.” The Center is concerned about further reliance on this decision-making tool, which, at best, provides incomplete information. Further, to the extent that MPF offers additional decision-making information, via a tool or any other means, it must remain neutral with respect to describing all coverage options.

Unfortunately, CMS materials since the Fall of 2017 have not maintained such neutrality. Rather than presenting differences between traditional Medicare and private MA plans in an unbiased manner, CMS material has overplayed the pluses of MA and downplayed minuses in a manner that is highly misleading, at best. Advocates have raised concerns about both CMS’ proposed and finalized revisions to the Medicare & You handbook, online comparison tools discussed above, and education and outreach materials. This has included CMS’ enrollment period email campaign last Fall that downplayed or entirely left out the option of traditional Medicare, coupled with yet another email campaign that actively promoted enrollment in MA plans.  As noted in a December 2018 New York Times article by the late Robert Pear, a former chief actuary of CMS “said the emails sounded ‘more like Medicare Advantage plan advertising than objective information from a public agency.’”

At this point in August 2019, it is unclear to what extent this pattern of inappropriate MA steering will continue in the redesigned MPF, the as-yet unreleased 2020 Medicare & You handbook, and the upcoming education and outreach campaign for the Fall enrollment period.  We urge CMS to return to a neutral and unbiased presentation of coverage options for Medicare beneficiaries.


Medicare beneficiaries and those who assist them will have limited time to acclimate to the revised MPF prior to the upcoming Annual Coordinated Election Period. We hope that the revised MPF will provide information in an objective manner, as required by law, and that other CMS materials will follow suit.


Short-term Health Plans: Goldmines for Insurance Companies, Junk for Enrollees

A Modern Healthcare article about the National Association of Insurance Commissioners’ 2018 Accident and Health Policy Report, reports that short-term health plans, greatly encouraged by the current administration, offer little coverage for enrollees.

The article reports that the average amount spent per dollar of premium paid by the five insurers bringing in the most premiums from short term plans was 39 cents out of each dollar. Some plans return as little as 9 cents out of every dollar paid in premiums on benefits.

“Compared to comprehensive plans that have to comply with the ACA’s rules, short-term plans’ coverage limitations often result in carriers paying out far fewer claims, or paying pennies on the dollar,” said Rachel Schwab, a research associate at Georgetown University’s Center on Health Insurance Reforms.

In contrast, the average return among comprehensive major medical plans in 2018 was nearly 73 cents on the dollar. ACA compliant plans are mandated to return 80 cents on the dollar.

Short-term junk plans return so little in part because they are not required to cover pre-existing conditions, essential health benefits like prescription drugs or maternity care, and can charge more based on health status.

There is big difference between “Insurance” and “Coverage.” Know what you’ll actually be getting before choosing a short-term plan.


Annual Surveys at Nursing Facilities Are Essential To Protect Residents

For decades, the nursing home industry has proposed relaxing the requirement for annual surveys at nursing facilities.[1]  Industry representatives argue that surveyors should excuse “good” facilities from annual surveys and focus their attention on poorly-performing facilities. The argument’s superficial appeal fails with scrutiny.

First, how would we identify “good” facilities? As the Government Accountability Office (GAO) recently reported[2], and others have confirmed, serious quality of care problems occur in so-called good facilities, undercutting claims that good facilities are clearly identifiable and could safely be exempted from annual surveys. Second, federal law already supports appropriate flexibility in the survey process, giving states clear authority to focus more attention on the poorest-performing facilities and less on better-performing facilities.

Quality Problems Exist In All Categories of Nursing Facilities and Are Under-Reported

In June 2019, the GAO reported that in the five-year period 2013 through 2017, abuse deficiencies at nursing facilities more than doubled (from 430 in 2013 to 875 in 2017). [3] The largest increase in deficiencies occurred in the two most serious categories of deficiencies, actual harm and immediate jeopardy (as fewer than 5% of deficiencies nationwide are classified). The GAO found that more than 10% of nursing facilities classified as five-star facilities (the highest rating) were cited with one or more abuse deficiencies in the five-year period.[4] Moreover, stakeholder groups in five states consulted by the GAO – Adult Protective Services, law enforcement, Medicaid Fraud Control Units, ombudsmen, and nursing home administrators and clinical staff – described “underreporting of abuse” as one of the challenges underlying the problem of abuse in nursing homes.[5] In short, the GAO found that abuse deficiencies are increasing, even in so-called better facilities, and that abuse is still under-reported.

The HHS Office of Inspector General (OIG) also recently reported that nursing facilities under-report abuse. Analyzing hospital emergency room claims data for 580 diagnosis codes for calendar year 2016, OIG estimated that 20% of the incidents reflect potential abuse, neglect, or injury of unknown origin.[6] OIG’s review of a sample of 256 claims involving nursing home residents found that skilled nursing facilities failed to report more than 84% of incidents involving potential abuse to the state survey agency, as required by federal law.

The GAO’s and OIG’s findings about the ongoing problem of abuse in nursing facilities are consistent with an analysis of performance measurement by four leading researchers in the nursing home field. More than 12 years ago, Charles Phillips, Catherine Hawes, Trudy Lieberman, and Mary Jane Koren reported the multiple dimensions of quality in nursing facilities and the lack of correlation among them.[7] They found that a facility may perform well on one indicator of quality but poorly on another. As a result, identifying the “best” facilities overall is not possible. For example, as they were considering their recommendations on performance measurement, the New York State Attorney General began an investigation of a facility where cameras placed by his office captured “graphic images of poor care, neglect, and abuse.”[8] The facility had not been considered a poor performer prior to the Attorney General’s investigation.  Concluding that performance measurement models are better at predicting poor quality than excellent quality, the researchers recommended that public reporting systems be used for only the limited purpose of identifying the poorest performers. The systems cannot reliably identify the “best” facilities.

With nursing facilities increasing their staffing for surveys;[9] nursing home quality rapidly changing with changes in ownership, management, and key staff; and the GAO’s repeatedly reporting since the Clinton Administration, more than 20 years ago, that surveys under-report and under-code care deficiencies,[10] the government is not able to identify facilities that could safely be exempted from an annual survey.

The Federal Survey Process Already Includes Flexibility

The 1987 Nursing Home Reform Law authorizes state survey agencies to tailor the timing of their surveys, and survey team composition, to the expected quality of care provided by facilities. Federal law requires states to conduct standard surveys on a nine to 15-month survey cycle, with a 12-month statewide average.[11] This statutory flexibility encourages states to conduct surveys more frequently at facilities with anticipated quality of care problems and less frequently at facilities with fewer problems.

The Reform Law also authorizes states to use multidisciplinary survey teams[12] as well as specialized teams, with “an attorney, an auditor, and appropriate health care professionals.”[13] From data mining and ombuds feedback prior to a survey, states should already be tailoring survey teams to the problems that are anticipated in a facility. They should be sending smaller survey teams for shorter periods of time to facilities with fewer anticipated problems and larger teams for longer periods of time to problem facilities as well as identifying when to include specialized surveyors on a survey team.


Proposals to conduct less than annual surveys at nursing facilities hark back to the Reagan Administration’s 1982 proposal to conduct nursing home surveys on a less-than annual basis.[14]  This proposal, among others, led to two Congressionally-enacted legislative moratoria preventing deregulation of the nursing home industry, the Institute of Medicine’s 1986 study of nursing homes, Improving the Quality of Care in Nursing Homes, and, ultimately, enactment of the 1987 Reform Law. Let’s not go back to 1982 proposals.

Surveys are conducted to protect residents and to ensure that all residents receive the quality of care that the Nursing Home Reform Law promises. Overwhelming evidence of continuing problems in quality of care supports the need for at least annual surveys at all facilities.


[1] The Center for Medicare Advocacy has written about industry proposals over the years.  “Federal Nursing Home Enforcement System is Not Punitive: Setting the Record Straight Again” (CMA Alert, May 8, 2014), (discussing the trade association of not-for-profit nursing facilities, LeadingAge, and its 2014 policy statement (“2014 Quality in Nursing Home Care”) and 2008 report (Broken and Beyond Repair), neither still available on its website, criticizing the enforcement system as punitive and calling for a reevaluation of the survey and enforcement systems); “Back to the Future: Nursing Home Industry Makes Secret Survey and Enforcement Proposals to Congress” (CMA Alert, Apr. 16, 2009) (reporting the trade association of for-profit facilities, American Health Care Association, calling for on-site survey of “Top Tier” nursing facilities every three years, at statewide intervals not exceeding 39 months).
[2] GAO, Nursing Homes: Improved Oversight Needed to Better Protect Residents from Abuse, GAO-19-433 (Jun. 2019),
[3] Id. [4] Id. 24.
[5] Id. 32.
[6] HHS Inspector General, Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated, A-01-16-00509 (Jun. 2019),
[7] Charles D. Phillips, Catherine Hawes, Trudy Lieberman, and Mary Jane Koren, “Where should Momma go? Current nursing home performance measurement strategies and a less ambitious approach,” BMC Health Services Research 2007, 7:93 (Jun. 2007),
[8] Id.
[9] Fangli Geng, David G. Stevenson, and David C. Grabowski, “Daily Nursing Home Staffing Levels Highly Variable, Often Below CMS Expectations,” Health Affairs 38, No. 7 (Jul. 2019).
[10], including, for example, California Nursing Homes: Federal and State Oversight Inadequate to Protect Residents in Homes with Serious Care Violations, T-HEHS-98-219 (Jul. 1998),; Nursing Homes: Many Shortcomings Exist in Efforts to Protect Residents from Abuse , GAO-02-448T (Mar. 2002),; Nursing Homes: Despite Increased Oversight, Challenges Remain in Ensuring High-Quality Care and Resident Safety , GAO-06-117 (Dec. 2005),; Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents, GAO-07-241 (Mar. 2007),; Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses, GAO-08-517 (May 2008),; Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment, GAO-10-70 (Nov. 2009),; Nursing Home Quality: CMS Should Continue to Improve Data and Oversight, GAO-16-33 (Oct. 2015) ,; Management Report: CMS Needs to Address Gaps in Federal Oversight of Nursing Home Abuse Investigations That Persisted in Oregon for at Least 15 Years, GAO-19-313R (Apr. 2019),
[11] 42 U.S.C. §§1395i-3(g)(2)(A)(iii)(I), 1396r(g)(2)(A)(iii)(I), Medicare and Medicaid, respectively.
[12] 42 U.S.C. §§1395i-3(g)(2)(E)(i), 1396r(G)(2)(E)(i).
[13] 42 U.S.C. §§1395i-3(g)(4), 1396r(g)(4).
[14] 47 Fed. Reg. 23403 (May 27, 1982).


CMA Webinar Schedule for 2019-2020

Skilled Nursing Facility Updates

Wednesday, September 18, 2019 3:00 PM – 4:00 PM EDT

Presenters: Center for Medicare Advocacy Senior Policy Attorney Toby Edelman, Policy Attorney Dara Valanejad, and guest.

Medicare for People with Paralysis – Sponsored by the Christopher & Dana Reeve Foundation

Wednesday, October 2, 2019 3:00 PM – 4:30 PM EDT

Presenters: Center for Medicare Advocacy Executive Director, Attorney Judith Stein, and Associate Director, Attorney Kathy Holt.

Medicare Enrollment Issues for 2020

Wednesday, October 23, 2019 3:00 PM – 4:00 PM EDT

Presenters: Center for Medicare Advocacy Associate Director David Lipschutz and guest(s).

Coordination of Benefits – What Pays When?

Wednesday, November 6, 2019 3:00 PM – 4:00 PM EST

Presenters: Center for Medicare Advocacy Associate Director, Attorney Kathleen Holt and Policy Attorney Kata Kertesz.

Replay: Medicare for People with Paralysis (Recorded Presentation with LIVE Q&A) Sponsored by the Christopher & Dana Reeve Foundation

Thursday, November 7, 2019 3:00 PM – 4:30 PM EST

Presenters: Center for Medicare Advocacy Executive Director, Attorney Judith Stein, and Associate Director, Attorney Kathy Holt.

Medicare Appeals in Light of Jimmo v. Sebelius – Sponsored by the National Academy of Elder Law Attorneys

Wednesday, December 11, 2019 3:00 PM – 4:30 PM EST

Presenters: Center for Medicare Advocacy Executive Director, Attorney Judith Stein, Senior Attorney Mary Ashkar, and Attorney Paul Grabowski.

Medicare Home Health Update

Wednesday, January 15, 2020 3:00 PM – 4:00 PM EST

Presenters: Center for Medicare Advocacy Executive Director, Attorney Judith Stein, and Associate Director, Attorney Kathy Holt.

Medicare & Health Care Updates

Wednesday, April 8, 2020 3:00 PM – 4:00 PM EDT

Presenters: Center for Medicare Advocacy Senior Policy Attorney David Lipschutz and guest(s).

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