- The National Association of Insurance Commissioners Recognizes Maintenance Therapy, Bolstering the Jimmo Settlement Agreement
- Inadequate Personal Care at Home Increases Overall Medicare Costs
- The New York Times Reports On HUD-Backed Nursing Homes
- Center for Medicare Advocacy Submits Comments to House Ways & Means and Energy & Commerce Committees on Draft Part D Legislation
The National Association of Insurance Commissioners (NAIC) is a standard-setting and regulatory support organization governed by chief insurance regulators from across the country. NAIC’s website indicates that organizational members and its resources, “form the national system of state-based insurance regulation in the U.S.” One such resource is NAIC’s Glossary of Health Insurance and Medical Terms, which defines ‘rehabilitation’ as follows:
Health care services that help a person keep, get back or improve skills and functioning for daily living that have been lost or impaired because a person was sick, hurt or disabled. These services may include physical and occupational therapy, speech-language pathology and psychiatric rehabilitation services in a variety of inpatient and/or outpatient settings (emphasis added).
NAIC’s definition recognizes that rehabilitation services may not only be necessary to improve a patient’s condition but may also be necessary to “keep” his or her skills and functioning. This definition confirms the Settlement Agreement in the nationwide class-action lawsuit Jimmo v. Sebelius, No. 5:11-CV17 (D. VT).
Approved by a federal district court in January 2013, the Jimmo Settlement required the Centers for Medicare & Medicaid Services (CMS) to confirm that Medicare coverage of skilled nursing and/or therapy services is determined by a beneficiary’s need for skilled care, not on a beneficiary’s potential for improvement. As a result, Medicare policy now clearly states that coverage:
[D]oes not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care. Skilled care may be necessary to improve a patient’s condition, to maintain a patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.
Bolstering NAIC’s recognition of maintenance care, the Jimmo Settlement means that Medicare beneficiaries must not be denied coverage for maintenance nursing or therapy provided by a skilled nursing facility, home health agency, or outpatient therapy provider when skilled personnel must provide or supervise the care in order for it to be safe and effective. Medicare coverage should not be denied solely because an individual has an underlying condition that won’t get better, such as MS, ALS, Parkinson’s disease, or paralysis.
If Medicare coverage is denied based on an erroneous “Improvement Standard,” please visit the Center’s Improvement Standard and Jimmo News webpage for our setting-specific self-help materials. Although challenging a Medicare denial may seem daunting, beneficiaries and their representatives can win appeals when equipped with the right information.
 CMS Transmittal 179, Pub 100-02, 1/14/2014; See also Medicare Benefit Policy Manual (MBPM), Chapter 7 – Home Health Services, Section 20.1.2, 40.1-.2; MBPM, Chapter 8 – Coverage of Extended Care (SNF) Services Under Hospital Insurance, Sections 30.2-.4; MBPM, Chapter 15 – Covered Medical and Other Health Services, Sections 220, 220.2-.3, 230.1.2.
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Medicare home health coverage plays a vital role in supporting the health, safety, and well-being of adults in need of community-based care. Unfortunately, the Center for Medicare Advocacy (the Center) regularly hears from Medicare beneficiaries and their families about their inability to access care, or the appropriate amount of care, despite meeting the necessary coverage criteria. For instance, while Medicare authorizes personal hands-on care (such as assistance with toileting and ambulation), access to home health aides continues to shrink. Not surprisingly, the failure to provide adequate care to beneficiaries in the community is increasing overall Medicare costs.
According to a recently published study in the Annals of Internal Medicine, poor support in the activities of daily living negatively affects annual Medicare spending. The May 2019 study, entitled “Medicare Spending and the Adequacy of Support With Daily Activities in Community-Living Older Adults With Disability: An Observational Study,” finds that poor support for “mobility and self-care is associated with higher Medicare spending, especially in the middle and lower ends of the spending distribution.” In a post on The Commonwealth Fund’s website, the authors suggest, “more than $4 billion in additional spending may have been incurred by Medicare in 2015 as a result of excess costs related to inadequate support . . . .” The authors note that more than one in five beneficiaries reported negative outcomes because of inadequate support, including difficulty toileting, problems with ambulation, and medication errors.
As our Medicare Platform states, the Center is committed to reducing ongoing barriers to care by ensuring home health coverage for beneficiaries who meet the necessary coverage criteria, as well as ensuring beneficiaries have access to legally authorized home health aides. To learn more about our efforts to protect and improve the home health benefit, please visit our Home Health Care webpage at https://www.medicareadvocacy.org/medicare-info/home-health-care/.
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Nursing home financial arrangements are important issues of public policy. Failures by state and federal governments to ensure nursing home financial accountability and integrity have an increasingly devastating impact on nursing home residents and their families across the country.
According to a recent report by The New York Times, the U.S. Department of Housing and Urban Development (HUD) administers a government-backed mortgage program for residential care facilities. Under what is known as a Section 232 loan agreement, HUD has the authority to guarantee bank loans made to nursing homes for the purposes of purchasing, refinancing, constructing, or substantially rehabilitating a facility. However, the financial guarantee is not without conditions. Nursing home owners must adhere to certain requirements, such as reporting problematic surveys and fines, as well as working with HUD to establish an action plan for removing a nursing home from the Special Focus Facility list.
The Times reports that the program currently guarantees $20 billion in mortgages for 2,300 nursing homes—or about 15 percent of nursing homes nationwide. The Times’ analysis shows that these nursing homes are “more likely to receive one-or-two-star ratings from Medicare than other nursing homes.” Unfortunately, The Times also notes that, “[b]y the government’s own admission, the federal agency’s stewardship of the program has been haphazard.” Reports on the program spanning several decades indicate poor oversight. For example, The Times identifies a 1995 Government Accountability Office (GAO) report which documents that staff do not focus on “nursing home loans unless financial trouble appears imminent or a default occurs.” The Times also points to a recent report by the HUD Inspector General finding that HUD failed to “penalize operators that did not submit accurate and complete data in a timely manner.”
As The Times’ report highlights, the recent collapse of a Chicago-based nursing home operator demonstrates the program’s problems. The owners stopped making payments on the mortgage of “their crown jewel, the Rosewood Care Centers, barely a year after buying it in 2013 . . . some money meant for the 13 nursing homes and assisted-living facilities went to prop up another investment.” Ultimately, the business defaulted on $146 million in HUD-backed loans in 2018—the biggest failure in the history of the program. The Times adds that, in addition to covering the defaulted mortgages, HUD has spent $15 million since August 2018 keeping the facilities operating.
Consumers deserve transparency and quality. When nursing homes depend on public funds through HUD, the public, in turn, has the right to expect that the nursing homes will use the funds appropriately and provide care that meets federal standards. The Section 232 program needs greater transparency and recognition of quality standards. The Center for Medicare Advocacy and the Long Term Care Community Coalition hope to work with HUD to ensure that the government holds nursing homes accountable for both taxpayer funds and resident care.
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On May 23, 2019, Ways & Means Committee Chairman Richard E. Neal (D-MA) and Energy & Commerce Committee Chairman Frank Pallone, Jr. (D-NJ), along with Ranking Members Kevin Brady (R-TX) and Greg Walden (R-OR) announced a solicitation for comments on draft legislation to reform the Medicare Part D program that would establish an out-of-pocket cap for Medicare beneficiaries.
Drafted in collaboration with other beneficiary-focused organizations, the Center for Medicare Advocacy submitted comments to the committees (all of the submitted comments, along with the committees’ solicitation, are available here).
In our comments, the Center supported adding an out-of-pocket cap in the Part D benefit at a level that will provide meaningful relief for individuals. We also suggested improving the Part D Low-Income Subsidy (LIS), or Extra Help, by eliminating the asset test and expanding eligibility and eliminating cost-sharing for generic drugs for those with LIS. We also recommended fixing the flaws in the current Part D exceptions and appeals process, including requiring plans to issue individually-tailored notices at the pharmacy counter when a drug is denied, and allowing such a denial to trigger an appeal right (instead of requiring an individual to follow up with his or her plan in order to request a coverage determination that could then trigger an appeal right). We also urged the committees to consider allowing tiering exceptions for drugs placed in plans’ specialty tiers, as well as allowing the current, more consumer-friendly off-label drug use standards in Part B to apply to off-label coverage for Part D drugs.
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