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  1. More Health Care Sabotage: Inadequate Funding for Navigators
  2. Court Ruling May Lead to Even More Overpayments to Medicare Advantage
  3. MedPAC Discusses Requiring a Three-Day Hospital Stay for All Post-Acute Care, Threatening Access to Care
  4. House Committee Holds Hearing on Nursing Home Quality Issues
  5. Proposed DMEPOS Rules: Clarification and Enforcement Needed

More Health Care Sabotage: Inadequate Funding for Navigators

This week, CMS announced it was awarding significantly less funding for navigator organizations than in the past for the upcoming Affordable Care Act open enrollment season. Overall, the program’s funding has been reduced from 2016’s $100 million budget to $10 million for 2018. Navigator organizations are non-profits that provide critical assistance to consumers who need help enrolling in health insurance plans. In addition to the funding cuts, the number of navigators actually receiving funding dropped from 90 to 39. These cuts are crippling, especially in light of other actions taken to undermine the health care law.

Not only has funding been slashed, navigators are also being actively encouraged to promote junk plans such as short-term limited-duration insurance and association health plans. As we have previously highlighted, these junk plans will leave consumers without coverage when they need care the most. Further, these plans do not have to abide by ACA coverage and consumer protections. Such plans should certainly not be promoted to vulnerable, “left behind” populations as CMS describes in the press release announcing the awards.

Last year, we saw the Administration cut the ACA enrollment period in half; slash funding for enrollment assistance; refuse to participate in enrollment events; shut down during critical times; and refuse to pay cost-sharing reductions. If that is any indicator of what’s to come this year, a strong and fully funded Navigator program will be needed more than ever.  


Court Ruling May Lead to Even More Overpayments to Medicare Advantage

As reported in FierceHealthcare, “Medicare Advantage insurers scored a significant legal victory” when a U.S. District Court judge recently “struck down a 2014 rule requiring [plans] to report and return overpayments.”  Further, according to Modern Healthcare, this ruling “leaves the federal government with fewer tools to combat upcoding practices that cost the taxpayer-funded Medicare program billions of dollars.”

Health policy experts, according to Modern Healthcare, “said that the overpayment rule was meant to curb upcoding and fraudulent billing; vacating it paves the way for more of the same.”

According to the judge’s order, the effect of the rule was that MA insurers were paid less to provide the same coverage to their enrollees than the Medicare program pays for comparable individuals in traditional Medicare. 

However, as reported in Modern Healthcare:

Experts watching the decision argued research flies in the face of these conclusions. According to MedPAC's latest report, payments to Medicare Advantage were 2% to 3% higher in 2016 than they would have been if those same patients were treated under fee-for-service Medicare. That's because Advantage plans' coding practices have resulted in their enrollees having an average risk score that's 8% higher than similar Medicare fee-for-service beneficiaries, despite strong evidence that Advantage members are not sicker.

At a time when some policymakers continue to push for significant cuts to Medicare, both Congress and CMS should redouble their efforts to ensure that wasteful overpayments to Medicare Advantage plans do not continue.  Unfortunately, this court ruling is a step in the wrong direction.


MedPAC Discusses Requiring a Three-Day Hospital Stay for All Post-Acute Care, Threatening Access to Care

The Medicare Payment Advisory Commission (MedPAC) held a public meeting on September 6, 2018. Commissioners listened as staff presented on “Aligning Medicare’s statutory and regulatory requirements under a unified payment system for post-acute care.”[1] Specifically, the presentation discussed the need to make level-of-care requirements consistent across post-acute care (PAC) settings under a unified PAC prospective payment system (PPS). The objective of the unified PAC PPS is to “set payments based on patient characteristics, not site of care.”[2] MedPAC envisions that a “common set of requirements . . . [would] apply to all providers.”[3]

In discussing what policies might ensure appropriate PAC use under the unified PAC PPS, MedPAC staff suggested “requiring a three-day stay for PAC to ensure appropriate use.”[4] The presentation highlighted that the three-day hospital stay requirement may be mitigated by allowing observation days to count towards the requirement and allowing accountable care organizations or entities at financial risk to waive the requirement.[5] Even with limited exceptions, MedPAC’s proposal would create a substantial barrier to care for countless Medicare beneficiaries who need post-acute care would not meet an arbitrary three-day hospital stay requirement.

In order to qualify for skilled nursing facility coverage, beneficiaries must have a qualifying three-day inpatient hospital stay. There is currently no similar three-day hospital stay requirement for care at inpatient rehabilitation facilities, long-term care hospitals, or for home health. In fact, Congress specifically removed a prior Part A hospital stay requirement for home health in 1980.[6] Adding a hospital stay requirement now for home health or any other post-hospital care setting is a step back for the Medicare program and beneficiaries.  It is also contrary to health policy goals of avoiding and reducing hospitalization, the most expensive setting for care.

[1] Evan Christman, Aligning Medicare’s statutory and regulatory requirements under a unified payment system for post-acute care, MedPAC (Sept. 6, 2018),
[2] Id.

[3] Id.
[4] Id.
[5] Id.
[6] The Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499. See also Medicare Home Health Coverage is Not a Short-Term, Acute Care Benefit ─ Congress Acted in 1980 to Provide for Longer-Term Coverage, Center for Medicare Advocacy, (last visited Sept. 11, 2018).


House Committee Holds Hearing on Nursing Home Quality Issues

For the first time in many years, Congress held a hearing on nursing home quality of care on September 6, 2018.  The hearing of the Subcommittee on Oversight and Investigations of the House Energy and Commerce Committee, entitled “Examining Federal Efforts to Ensure Quality of Care and Resident Safety in Nursing Homes,” featured three witnesses: Kate Goodrich, Director, Center for Clinical Standards and Quality, and Chief Medical Officer, Centers for Medicare & Medicaid Services (CMS), Ruth Ann Dorrill, Regional Inspector General, HHS Office of Inspector General (OIG), and John Dicken, Director, Health Care, Government Accountability Office (GAO).[1] 

Dr. Goodrich summarized CMS’s actions with respect to emergency preparedness, the Five-Star Quality Rating System, the Payroll-Based Journal system for reporting nurse staffing, and the new federal survey process.  The OIG and GAO witnesses recounted highlights of their many nursing home reports over the last several years.  Ms. Dorrill reported “widespread, serious problems in nursing homes” and the “low-level substandard of care [that] harms a tremendous number of people.”  As Chairman Gregg Harper (R, MS) underscored, the OIG has identified nursing home quality as a top management challenge for CMS for the past decade.  Over the past two decades, the GAO issued more than two dozen reports finding shortcomings in nursing home care and in state and federal oversight.

Many Members of Congress focused on Hollywood Hills, the Florida nursing facility where 14 residents died in 2017 when Hurricane Irma resulted in the facility’s losing its air conditioning.  One question, raised by several Members, was how the owner of that now-terminated nursing facility, who had also been subject to a Corporate Integrity Agreement years earlier, could still continue to own 11 different facilities that receive Medicare and Medicaid reimbursement.  Dr. Goodrich indicated that nothing in the Medicare law prevents the owner from continuing to own other facilities, but that a proposed rule from 2016 could enhance CMS’s authority.[2]

Congresswoman Jan Schakowsky (D, IL) raised concerns about the ongoing misuse of antipsychotic drugs, inadequate nurse staffing levels, and the lack of a requirement for registered nurses around the clock, while Congresswoman Mimi Walters (R, CA) focused on transfer and discharge issues.

The American Health Care Association (AHCA), the nursing home trade association, issued a statement describing the progress the industry has made in reducing hospitalizations and the use of antipsychotic drugs and improvements in 20 of 24 quality measures and staffing levels.[3]   AHCA’s CEO Mark Parkinson said that although nursing homes’ progress should be acknowledged, “The reality is that nursing homes are a convenient political punching bag.”   He continued, “At a time when Congress faces public criticism for its failure to work together and accomplish shared goals, this hearing seems like a misguided effort to find more ways to regulate an already overburdened sector.”

The Center for Medicare Advocacy prepared a Statement for the record describing the lack of meaningful enforcement of federal standards of care; “the virtually non-existent oversight, at both the federal and state levels, of who owns and manages nursing facilities;” the ongoing gaming by facilities in the quality measures domain of the Five-Star Quality Rating System; and the need for improved nurse staffing levels.[4]

It is not yet known what the Subcommittee’s next steps will be.

[1] The witnesses’ written statements, opening statements of the full Committee and Subcommittee Chairs, and Background Memo are available at
[2] Dr. Goodrich appears to have been referring to a proposed rule required by the Affordable Care Act, “Medicare, Medicaid, and Children’s Health Insurance Programs; Program Integrity Enhancements to the Provider Enrollment Process,” CMS-6058-P, 81 Fed. Reg. 10720 (Mar. 1, 2016),  It is unlikely that the proposed rule will be published as a final rule. 
[3] “AHCA Statement on Congressional Hearing,”


Proposed DMEPOS Rules: Clarification and Enforcement Needed

The Center for Medicare Advocacy (the Center) submitted comments to the Centers for Medicare & Medicaid Services (CMS) regarding proposed rules affecting durable medical equipment, prosthetics, orthotics and supplies (DMEPOS). The Center requested that CMS:

  • Seek to maximize beneficiary access to DMEPOS;
  • Clarify supplier responsibilities to provide beneficiaries with appropriate products and timely services;
  • Develop appropriate enforcement mechanisms to ensure suppliers are following regulations and policies in order to protect both beneficiaries and the Medicare program;
  • Properly communicate to suppliers that the proposed payment strategy, Lead Item Pricing, will be monitored to prevent adaptive profit-making that would result in reduced access to equipment or supplies; and
  • Define “Value” in DMEPOS supplier contracts as a multi-faceted CMS commitment that is grounded in more than short-term financial results and includes effective/quality products, responsive service, follow-up, long-term results and long-term cost savings.

See our full comments at:


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