- This Week in ACA Sabotage
- Bipartisan Agreement on ACA Stabilization Package
- Nursing Home Rights Roundup
In a recent cabinet meeting, the President was reported as saying "Obamacare is finished, it's dead, it's gone, you shouldn't even mention it, it's gone," He went on to say, "There's no such thing as Obamacare anymore."
Unfortunately, this reported statement comes after a long list of actions his administration has taken to undermine the healthcare of millions of Americans. Just last week he signed an Executive Order that would allow the sale of junk plans, sold across state lines, to cherry-pick younger, healthier people. These plans could strip away important ACA protections against pre-existing conditions, reaching lifetime and annual limits, and charging older people more.
As if the Executive Order wasn’t enough, the Administration also announced that starting in a few weeks, it will no longer fund subsidies that help lower income people afford health coverage, known as cost-sharing reduction subsidies (CSRs). The Congressional Budget Office (CBO) estimates these actions will increase health insurance costs by 20% in 2018 and up to 25% in 2020. These actions come on top of the sabotage happening at the U.S. Department of Health and Human Services (HHS). HHS has already reduced the ACA enrollment period, gutted funding for both advertising and personal enrollment assistance, refused to participate in enrollment events and will be taking healthcare.gov down for critical periods during open enrollment.
As stated on October 16, we urge the Administration to stop the sabotage, implement the law, and enhance – not impede – quality health coverage and care for all Americans.
On October 17, Senators Alexander and Murray, the chair and ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, announced a bipartisan agreement to stabilize the ACA’s markets. If passed by Congress and enacted into law, the bill would mitigate some, but not all, of the Administration’s sabotage efforts. The agreement would restore cost-sharing subsidies (CSRs) through 2019 and restore certain funding for ACA outreach and enrollment. Coupled with other changes, including allowing states more flexibility in designing health plan benefits, this agreement represents important, bipartisan compromise and progress in discussions surrounding health reform.
In a Fact Sheet posted October 2, 2017, the Centers for Medicare & Medicaid Services (CMS) announced that the National Partnership to Improve Dementia Care “met its goal of reducing the national prevalence of antipsychotic use in long-stay nursing home residents by 30 percent by the end of 2016.” CMS encourages facilities that it describes as having “low rates of antipsychotic medication use” to “continue their efforts and maintain their success.” Apparently no further reductions are expected from them. For facilities “with currently limited reduction rates” (i.e., facilities not yet meeting CMS’s goal), CMS announces a new goal: a 15% reduction in antipsychotic drug use by the end of calendar year 2019.
CMS’s claim of success in reducing unnecessary antipsychotic drugs is grossly overblown. CMS says that between the end of 2011 (just before the National Partnership to Improve Dementia Care was announced) and the end of the first quarter in 2017, “the national prevalence of antipsychotic use in long-stay nursing home residents was reduced by 34.1 percent, decreasing from 23.9 percent to 15.7 percent nationwide.”
CMS’s acceptance of a 15.7% rate of antipsychotic drug use in nursing facilities as success is not consistent with the mandate of the federal Nursing Home Reform Law, which creates an entitlement to high quality of care for each individual resident. A single resident receiving antipsychotic drugs who should not be receiving them reflects noncompliance with the law and should be cited as a deficiency.
Moreover, despite CMS’s claim of success, hundreds of thousands of residents continue to receive antipsychotic drugs, more than six and a half years after the HHS Inspector General issued a scathing report about inappropriate antipsychotic drug use; more than six years after a hearing before the Senate Special Committee on Aging on inappropriate use of antipsychotic drugs; and more than five years after CMS announced its National Partnership. Although there are many different analyses of how many residents take antipsychotic drugs, applying CMS’s 15.7% rate of antipsychotic drug use to the 1,300,000 individuals currently residing in nursing facilities indicates that more than 200,000 residents are still taking antipsychotic drugs. For the overwhelming majority of these residents, the drugs are medically inappropriate and life-threatening.
The misuse of drugs in nursing facilities is a long-standing problem nationwide. The Senate Special Committee on Aging issued a series of papers in the 1970s under the title “Nursing Homes: Failure in Public Policy.” Supporting Paper No. 2, “Drugs in Nursing Homes: Misuse, High Costs, and Kickbacks,” issued January 1975, discussed antipsychotic drugs, among others.
Instead of abandoning its goal of reducing the use of antipsychotic drugs in nursing facilities, CMS should take strong and meaningful enforcement action against facilities that continue to administer these drugs inappropriately to any resident. To claim success is to misstate the truth.
 CMS, “Data show National Partnership to Improve Dementia Care achieves goals to reduce unnecessary antipsychotic medications in nursing homes” (Fact Sheet, Oct. 2, 2017), https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2017-Fact-Sheet-items/2017-10-02.html
 42 U.S.C. §§1395i-3(b)(2), 1396r(b)(2), Medicare and Medicaid, respectively.
 HHS Inspector General, Medicare Atypical Antipsychotic Drug Claims for Elderly Nursing Home Residents, OEI-07-08-001S0 (May 2011), http://oig.hhs.gov/oei/reports/oei-07-08-00IS0.pdf.
 “Overprescribed: The Human and Taxpayers’ Costs of Antipsychotics in Nursing Homes” (Hearing, Nov. 30, 2011), https://www.aging.senate.gov/hearings/overprescribed-the-human-and-taxpayers-costs-of-antipsychotics-in-nursing-homes.
 The varying numbers reflect the different data that are used. Partnership data are facility-wide data, MDS-based, and limited to long-stay residents; CMS MDS 3.0 quarterly frequency reports include short-stay residents as well as long-stay residents; the GAO looked at payments by Part D plans; Medicare Part D Compare website reports atypical antipsychotic drug payments for residents that are made by Part D plans. See “Antipsychotic Drugs and Nursing Home Residents: What Do the Different Numbers Mean?, CMA Alert, Mar. 12, 2015, https://www.medicareadvocacy.org/antipsychotic-drugs-and-nursing-home-residents-what-do-the-different-numbers-mean/.
 The Center for Medicare Advocacy has written about antipsychotic drugs and nursing home residents many times over the years. See https://www.medicareadvocacy.org/?s=antipsychotic+drugs&op.x=0&op.y=0.
The Centers for Medicare & Medicaid Services (CMS) relies on state survey agencies to conduct onsite investigations of nursing homes annually and when complaints have been submitted. When complaints indicate harm to a resident that is immediate jeopardy or high priority, CMS requires states to conduct onsite investigations within 2 or 10 days, respectively. States may substantiate a complaint after it has been verified and may cite nursing homes for any deficiencies. The HHS Office of the Inspector General (OIG) published a report in September 2017 looking at each state’s compliance with these requirements. While the report sheds light on an important issue, it leaves many questions unanswered.
The Report found that, while the number of nursing home residents decreased between 2011 and 2015, the number of complaints states received increased by 33 percent. Correspondingly, 35 states saw an increase in the number of complaints they received. During this period, states prioritized 59 percent of the complaints as either immediate jeopardy or high priority—an increase of 4 percent since 2011. Eight states did not prioritize any complaints as immediate jeopardy in 2015; a similar trend was found for high priority complaints. Yet, the Report fails to account for whether states correctly prioritized the complaints that were not deemed immediate jeopardy or high priority.
Between 2011 and 2015, states substantiated 31 percent of the complaints that were prioritized as immediate jeopardy or high priority. The Report acknowledged that CMS’s definition of ‘substantiated’ allows for discrepancies. For instance, six states substantiated more than 50 percent of their complaints, while one state substantiated less than 10 percent. In total, the range of substantiated complaints among states ranged from 4 percent to 82 percent. Importantly, the report again fails to indicate whether states actually took enforcement actions when they substantiated complaints or whether any of those enforcement actions was ever evaluated.
The OIG Report also notes that CMS imposes sanctions or remedies when states do not meet the performance threshold of investigating at least 95 percent of immediate jeopardy or high priority complaints within the required timeframe. For instance, 22 percent of states did not meet the threshold requirement in investigating high priority complaints. Although the Report indicates that CMS requires such states to submit corrective action plans and to do follow ups, the Report once more fails to identify whether any additional enforcement measures were implemented.
- For the full OIG report, please see: https://www.oig.hhs.gov/oei/reports/oei-01-16-00330.pdf
 HHS Office of the Inspector General, A few States Fell Short in Timely Investigations of the Most Serious Nursing Home Complaints: 2011-2015 (Sept. 2017), https://www.oig.hhs.gov/oei/reports/oei-01-16-00330.pdf.
 Id. at 2
 Id. at 3.
 See id. at 4 (noting that the number of complaints increased from 32.7 to 44.9 complaints per 1,000 nursing home complaints).
 See id. at 4 (providing that 11 states saw an increase of 50 percent or more complaints; only 16 states had a decrease in complaints).
 See id. at 6.
 See id. at 6 (highlighting that 3 states did not prioritize any complaints as immediate jeopardy throughout the 5 years).
 See id. at 13 (“State substantiated 34 percent of the immediate jeopardy complaints and 30 percent of high priority complaints”).
 Id. at 14.
 See id. at 12 (pointing out that 4 states did not meet the threshold requirement for all but in year during the reporting period).
Last week, 120 Members of the House of Representatives signed a letter asking Acting Secretary of Health and Human Services (HHS), Eric Hargan, and CMS Administrator Seema Verma to re-evaluate the nursing home Requirements of Participation. These Members are encouraging revisions to the Final Rule that was issued in October 2016 under the Obama Administration. The Final Rule was issued, in part, because the regulations had “not been comprehensively reviewed and updated since 1991.”
The Congressional Members argue that the new requirements place a burden on providers and that providers have not had enough time to respond to the regulations. Citing CMS estimates, the Members highlight that these new requirements will cost the industry $831 million in the first year alone. Additionally, they argue that some of the regulations are duplicative, some providers already have their own procedures in place, and some will be burdened by the staffing requirements. 
Despite the arguments in the letter, the facts speak for themselves. The Obama Administration issued the final rule more than a year ago; providers have been on notice about these changes since that time. Most of the Rule’s Phase I requirements were either unchanged or received only minor changes. CMS released its guidance on the new Phase II participation requirements in June, five months before the new requirements would be implemented. A CMS memorandum that accompanied the release of the guidance further stated that CMS will not be enforcing some of the Phase II requirements for one year and will rather be taking that time to educate providers on the new requirements. CMS also indicated that it will maintain Nursing Home Compare ratings for one year, so any deficiencies that will actually be cited will not be reflected in a provider’s overall star-ratings. Lastly, while the new requirements may cost the industry $831 million in the first year, Medicare Fee-For-Service paid the skilled nursing facility industry $27.2 billion in 2015 and Medicaid paid nursing homes $46 billion in 2016.
Residents of nursing facilities need more protections in the form of regulations and enforcement, not less. The long-stay antipsychotic drug rate is 16.1 percent nationally, the pressure ulcer rate is 5.7 percent, residents spend less than one hour with a registered nurse per day, and these are just some of the worrisome self-reported data that are available on Nursing Home Compare.
- To read the letter, see: http://renacci.house.gov/_cache/files/8ad42967-7fd9-4d12-abaa-f65dda6e0426/renacci-rop-final-letter-10.11.17.pdf
 Emily Mongan, More than 100 lawmakers urge CMS to rethink long-term care requirements, McKights (Oct. 13, 2017), http://www.mcknights.com/news/more-than-100-lawmakers-urge-cms-to-rethink-long-term-care-requirements/article/699936/.
 Medicare and Medicaid Programs; Reform of Requirements for Long- Term Care Facilities, 81 Fed. Reg. 68688 (Oct. 4, 2016).
 Letter from Members of the House of Representatives to Eric Hargan & Seema Verma (Oct. 11, 2017), http://renacci.house.gov/_cache/files/8ad42967-7fd9-4d12-abaa-f65dda6e0426/renacci-rop-final-letter-10.11.17.pdf.
 Medicare and Medicaid Programs; Reform of Requirements for Long- Term Care Facilities, 81 Fed. Reg. at 68696.
 See David Wright, Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues, CMS (June 30, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Survey-and-Cert-Memo-Revision-SOM-Appendix-PP-Phase-2.pdf (highlighting the release of CMS’s interpretative guidance in Appendix PP).
Report to the Congress: Medicare Payment Policy, MEDPAC (Mar. 2017), http://www.medpac.gov/docs/default-source/reports/mar17_medpac_ch8.pdf.
 Figures are based on Nursing Home Compare data. In order to find the averages, visit a nursing facility’s page, click on “Quality of resident care,” and then scroll down to find the corresponding long-stay quality measures. For staffing, click on “Staffing” and scroll down to “Registered Nurse (RN) staffing rating.”