- More Health Care Sabotage: “Censorship” of the Affordable Care Act
- Nursing Home Study Finds Discharges Linked to Medicare Copayments
- Senators Release Secret List of Poor Quality Nursing Homes
- Center for Medicare Advocacy Submits Comments to CMS about Direct Contracting, Geographic-Based Model
- Center Comments on Proposed Rule Regarding Medicare/Medicaid Interoperability
A recent report by the Sunlight Foundation’s Web Integrity Project shows that the Administration removed 85 pages of information about the Affordable Care Act (ACA). According to the report, the removed information concerned “a wide range of information about programs offered, and rights guaranteed, under the ACA, and how the law affects coverage for a variety of historically underserved populations.” The report goes on to say that “…over a two year span since Trump took office, various HHS offices have seemingly gone out of their way to systematically remove references to the ACA and de-emphasize or eliminate information about its potential benefits.”
Since the beginning of the Administration, we have highlighted the various ways the ACA has been weakened and undermined. We have watched as the Administration cut the enrollment period in half; slashed funding for enrollment assistance; refused to participate in enrollment events; shut down healthcare.gov during critical times; and expanded the sale of inadequate insurance plans such as Short-Term Limited-Duration Insurance.
Considering these actions, it comes as no surprise that a recent CDC survey found that about 1.1 million people lost health coverage in 2018. In a report about the CDC findings, USA Today indicates that analysts have said “Efforts by the Trump administration and Congress to challenge and loosen requirements of the Affordable Care Act probably played a role in some going without coverage…”
The American people have consistently shown that they value fair access to quality affordable coverage and have rejected attempts to take away their coverage and care. The Affordable Care Act must not be undermined through executive action, legislation, the courts, or through “censorship.” We once again call on the Administration to cease these misguided actions and help, not hinder, access to coverage.
- See the Sunlight Foundation’s Report: https://sunlightfoundation.com/2019/05/15/85-page-aca-website-removed-from-hhs-gov/
- See USA Today article: https://www.usatoday.com/story/news/nation/2019/05/09/health-insurance-1-1-million-more-americans-lost-coverage-2018/1140304001/
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Background. Medicare beneficiaries are entitled to a maximum of 100 days of skilled nursing facility (SNF) care in a benefit period when they meet specific coverage criteria. However, Medicare Part A only covers the full cost of a beneficiary’s skilled care during the first 20 days of a nursing home stay. Starting on day 21, beneficiaries are responsible for paying a daily copayment ($170.50 in 2019). A recently published study in the Journal of the American Medical Association (JAMA) Internal Medicine, entitled “Association Between High Discharge Rates of Vulnerable Patients and Skilled Nursing Facility Copayments,” indicates that nursing homes seem to be discharging residents immediately before the daily copayment takes effect.
Study. Looking at a population of beneficiaries in traditional Medicare, the study finds that Medicare beneficiaries are “more often discharged from SNFs on benefit day 20 than on benefit days 19 or 21.” Beneficiaries discharged from nursing homes tend to be racial and ethnic minorities and to live in lower socioeconomic areas. Additionally, beneficiaries discharged on day 20 are also “more likely to have 5 or more comorbidities (42.2%) than patients discharged on days 19 and 21 (39.9% and 40.6%, respectively . . .).” The study’s authors note that, in some cases, nursing homes may be “prematurely discharg[ing] some patients to avoid the risk of accruing bad debt from partially uncompensated postacute care.”
Advocacy Tip. Medicare beneficiaries facing an involuntary discharge from a nursing home have appeal rights under both Medicare and the federal Nursing Home Reform Law. The termination of a resident’s Medicare coverage does not necessarily mean that a nursing home can or should discharge the resident from the facility. It is important to know that distinct notice and appeal rights apply in these situations:
- Medicare-Covered Stay. Nursing homes are required to provide Medicare beneficiaries with a Notice of Medicare Non-Coverage (NOMNC) two days before Medicare-covered services end. The NOMNC provides instructions on how to file an appeal.
- Nursing Home Reform Law. Nursing homes can only discharge residents under very limited circumstances. Generally, nursing homes must give residents notice 30 days before the discharge and residents are entitled to appeal the discharge notice.
Remember. Nursing homes must not terminate Medicare-covered skilled nursing and/or therapy services solely on the basis that a resident is not improving. Under the Settlement Agreement in Jimmo v. Sebelius, No. 5:11-CV-17 (D. VT), the Centers for Medicare & Medicaid Services (CMS) confirmed that Medicare coverage is based on a beneficiary’s need for skilled care, not on his or her potential for improvement. Medicare policy now clearly states that “[s]killed 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.”
- For more information about appealing a Medicare termination based on an erroneous “Improvement Standard,” please visit: https://www.medicareadvocacy.org/wp-content/uploads/2018/10/Jimmo-SNF-Checklist-Toolkit-00321779xC6348.pdf.
- To learn more about notice and appeal rights, please visit: https://www.medicareadvocacy.org/discharge-from-a-skilled-nursing-facility-what-does-it-mean-and-what-rights-does-a-resident-have/.
To learn more about the limited circumstances under which a nursing home can discharge a resident, please visit: https://nursinghome411.org/fact-sheet-nursing-home-transfer-discharge-rights/.
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At present, only 88 nursing facilities nationwide (0.6% of the nation’s total number of facilities) are identified as Special Focus Facilities (SFFs). The Centers for Medicare & Medicaid Services (CMS) describes SFFs as having “more problems” than other facilities, “more serious problems” than other facilities, and “[a] pattern of serious problems that has persisted over a long period of time” (i.e., the prior three years). Identification as an SFF subjects a facility to additional standard surveys, twice a year instead of once, and, in principle, more stringent enforcement actions (although the Center for Medicare Advocacy has documented the minimal enforcement actually taken against SFFs).
CMS and state survey agencies work collaboratively to select SFFs from a candidate list of approximately 400 facilities. Candidates are indistinguishable from facilities that are selected as SFFs. While the federal website Nursing Home Compare identifies SFFs with an icon and, since April 24, 2019, no longer reports star ratings for these facilities, it does not publicly identify SFF candidates and takes no special action against them.
Concerned about the poor quality care provided by some facilities, as documented in many investigative reports, and about the need for greater transparency and public information, Senators Bob Casey (D, PA) and Pat Toomey (R, PA) wrote CMS Administrator Seema Verma in March 2019, requesting information about the SFF program. Following her response, they released a report, Families’ and Residents Right to Know: Uncovering Poor Care in America’s Nursing Homes, about the SFF program, documenting examples of serious abuse and neglect in candidate facilities.
The report also demonstrates that information on Nursing Home Compare may be “misleading.” Candidate facilities may have overall ratings raised from one star to two stars (on a five-point scale) because they reported information that gives them high star ratings in staffing and quality measures. Even more troubling, 48% of candidate facilities have quality measure ratings of three stars or more and 49% of candidate facilities have staffing ratings of three stars or more. The public has no way of knowing how serious these candidate facilities’ deficiencies actually are; on Nursing Home Compare, the candidates may appear average.
The Senators also publicly released the April 2019 list of 400+ candidate facilities (CMS updates the list monthly). For the multistate chains that use a common name with all of their facilities, some observations are possible. Several chains have several candidates in a single state, with one named an SFF. An example is Alerion, with three candidates and one SFF in Indiana, out of 17 facilities. Other chains have candidate faculties in multiple states. Life Care Centers of America, for example, has SFF candidates in five states.
CMS should make each month’s SFF candidate list publicly available, just as it makes available the identity of facilities that are selected as SFFs. CMS should report the information, with an icon, on Nursing Home Compare, the federal website that CMS created for the public to provide information about nursing home quality. In addition, CMS should use the information about corporations providing poor quality care to take meaningful corporate-wide enforcement actions.
 CMS, “Special Focus Facility (“SFF”) Initiative,” https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf.
 “There’s Nothing Special About How CMS Treats Special Focus Nursing Facilities” (CMA Alert) (Feb. 14, 2019), https://www.medicareadvocacy.org/theres-nothing-special-about-how-cms-treats-special-focus-nursing-facilities/; “Report: There’s Nothing Special About How CMS Treats Special Focus Nursing Facilities,” https://www.medicareadvocacy.org/report-theres-nothing-special-about-how-cms-treats-special-focus-nursing-facilities/.
 CMS, “April 2019 Improvements to Nursing Home Compare and the Five Star Rating System,” QSO-19-08-NH (Mar. 5, 2019), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO19-08-NH.pdf.
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The Affordable Care Act created the Centers for Medicare & Medicaid Innovations (CMMI), which is tasked with testing demonstration programs aimed at delivery system reform. As discussed in a previous Weekly Alert in May 2018, among the models being developed is a suite of “Direct Contracting Model Options” described on the CMMI website. According to CMMI,
Direct Contracting (DC) is a set of three voluntary payment model options aimed at reducing expenditures and preserving or enhancing quality of care for beneficiaries in Medicare fee-for-service (FFS). The payment model options available under DC create opportunities for a broad range of organizations to participate with the Centers for Medicare & Medicaid Services (CMS) in testing the next evolution of risk-sharing arrangements to produce value and high quality health care. Building on lessons learned from initiatives involving Medicare Accountable Care Organizations (ACOs), such as the Medicare Shared Savings Program (MSSP) and the Next Generation ACO (NGACO) Model, the payment model options available under DC also leverage innovative approaches from Medicare Advantage (MA) and private sector risk-sharing arrangements.
As discussed in a previous Alert, the Center submitted comments to the initial request for information, including the overarching comment that the proposal was so ambiguous that it was difficult to provide meaningful feedback and specific recommendations without more substance offered.
CMMI recently sought input on one of the DC options, the Geographic Population-Based Payment Model. This model, among other things, “would offer an opportunity to take total cost of care (TCOC) risk for all Medicare [fee-for service, or those in traditional Medicare] beneficiaries in a defined target region.”
Drafted in collaboration with other beneficiary-focused organizations, the Center recently submitted comments to CMMI. In our “General Comments” we stated the following:
Overall, we reiterate our previous concerns about the lack of detail, and the posing of very specific questions in the RFI, about a concept that still remains largely abstract. The lack of details of this proposal make it difficult to provide thoughtful comments and adequately troubleshoot problems Medicare beneficiaries might face. In the absence of a more clearly formed proposal, we offer the following general and specific comments.
On the one hand, we are encouraged that CMMI is exploring ways to address social determinants of health (SDOH) outside of the Medicare Advantage setting, and urge CMMI, and CMS more broadly, to continue this exploration beyond the direct contracting models. We also appreciate that the current RFI notes that traditional Medicare beneficiaries aligned to [entities] participating in the Geographic PBP model option “would retain all of their Original Medicare benefits, including freedom of choice of any Medicare provider or supplier, even if the provider or supplier does not have an arrangement with the [participating entity].”
On the other hand, any model that relies on capitation must have rigorous oversight and a heavy focus on beneficiary-reported outcomes and satisfaction to ensure beneficiaries are receiving the care they need. Given our current concerns about oversight of the Medicare Advantage program, we are uneasy about how this proposed model seems to invite even less regulatory oversight. Stinting on care would remain a constant threat for beneficiaries with chronic or complex conditions. It is unclear how [participating entities’] incentives would work, how [such entities] would achieve savings, and what authority [they] would have to control costs (e.g., would they employ utilization management?). More broadly, it is unclear, exactly, what current problems or issues within the Medicare program the Geographic PBP is attempting to resolve. In other words, there are significant details missing that would certainly inform our, and other consumer advocates’, input.
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On June 3, 2019, The Center submitted comments on the Centers for Medicare & Medicaid Services (CMS) proposed rule regarding interoperability in Medicare and Medicaid programs.
In the comments, the Center expressed support for the Administration’s commitment to improving patient access to health information. However, we raised concerns about patient privacy created by increased data sharing, and urged CMS to focus on safeguards to protect private patient information. While supporting increased coordination and access to health information, the Center underscored the privacy and security concerns regarding sharing of health information, and urged CMS to ensure that such sensitive information is accessible only in a secure manner.
The Center also expressed strong support for measures that would improve data sharing for Medicare-Medicaid dually eligible beneficiaries by increasing the frequency of federal-state data exchanges.
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