- Medicare Plan Finder Pending Additional Updates; Concerns Remain
- Speaker Pelosi Unveils Bill Authorizing Negotiation of Drug Prices and Capping Out-of-Pocket Costs
- California Attorney General Calls on CMS to Withdraw Proposed Revisions to Nursing Home Requirements of Participation
- House of Representatives Passes Bill Prohibiting Pre-Dispute Arbitration Agreements
- Center for Medicare Advocacy Senior Policy Attorney Toby S. Edelman to Receive the Janet Wells Public Policy Leadership Award
- FREE WEBINAR: Register Now for Medicare for People with Paralysis
As discussed in a recent CMA Alert, the Center or Medicare Advocacy joined Medicare Rights Center, Justice in Aging and National Council on Aging in writing to the Administrator of the Centers for Medicare & Medicaid Services (CMS) to express concerns about the roll-out of the updated Medicare Plan Finder (MPF), publicly released on August 27, 2019, in addition to revisions to Medicare’s marketing guidelines.
Among the concerns noted in the joint letter, sent the same day that the updated Plan Finder was issued, the MPF’s “late August release may not give third-party assisters, like State Health Insurance Assistance Programs (SHIPs), adequate time to learn the new tool before Fall Open Enrollment begins.” The Annual Coordinated Election Period (ACEP), between October 15th and December 7th, is the time period during which Medicare beneficiaries can make coverage elections effective January 1st (this period is often referred to as the Open Enrollment period).
The letter continued: “Coupled with recent legislative and regulatory changes set to take effect this year, the truncated MPF launch timeline is likely to generate demand for enrollment assistance that these chronically underfunded programs are unable to meet.” Further, the current “legacy” version of MPF will not be available starting next week (October 1st). Thus, apparently due in part to issues relating to CMS’ current contract to administer the MPF, there will be no back-up available for this enrollment period.
Since the roll-out of the new MPF, Medicare advocates and assisters continue to test the system in order to learn how to use it and troubleshoot any problems prior to the upcoming ACEP. As noted in a recent Boston Globe article, Medicare assistors have identified flaws, including the lack of a total out-of-pocket cost calculator that was a feature of the “legacy” version.
Updates from CMS
Over the last couple of weeks, CMS has provided some updates regarding further updates to the MPF, including materials made available on its National Training Program website, which includes Top 10 Q&As on the new Plan Finder, a one page infographic and recorded versions of webinars discussing the new MPF.
CMS has indicated that further extensive enhancements will be made to the MPF when 2020 Medicare Advantage (MA) and Part D plan information is posted to the website, which in past years has been around October 1st. Here are some of the additional updates provided by CMS:
- Drug Lists – many SHIPs and other assistors help people do searches of Part D plans using lists of drugs that could previously be saved on the website without having to create a MyMedicare account. Due to a change in the contractor administering the MPF, CMS initially said that such lists would no longer be available, but more recently note in the Q&A: “We are working to extend access to any drug lists created in the old Plan Finder through the end of the 2019 Open Enrollment.”
- Total Out-of-Pocket Drug Costs – the ability to calculate projected total out-of-pocket drug costs was a feature of the old “legacy” plan finder that was not included the updated version. In the Q&A, CMS states “we have always planned to include the option to sort plans based on Total Annual out-of-pocket costs by Open Enrollment, and development of that feature is on track.”
While further improvements to the new MPF should certainly continue to be made, such enhancements made at the same time that 2020 plan information is made available will further strain SHIPs and other programs as counselors try to learn and adapt to the updated updates. As noted in the joint letter referenced above, we urge CMS to mitigate any adverse consequences of these continual changes by closely monitoring the roll out and functionality of the new MPF tool and providing enrollment relief as needed.
One of the concerns surrounding the MPF updates is that, as noted above, in order to save a drug search, a MyMedicare account must be created for an individual. These accounts include information about an individual’s medical claims history. SHIPs have expressed concern about having access to and retaining information about such private, protected health information. In response to these concerns, CMS noted in its Q&A:
“How can SHIP counselors, agents and brokers (or non-beneficiaries) help beneficiaries create accounts and compare/enroll in plans without violating HIPAA requirements?
Beneficiaries who work with trusted counselors using the old Medicare Plan Finder have always needed to share some sensitive personal information if they want help conducting a personalized search or enrolling in a plan. When using the new Plan Finder, counselors are expected to uphold the same practices they currently have in place to ensure that any personal information is kept safe and secure, and is used appropriately and only for the purpose that it was offered and intended.”
Unfortunately, while SHIPs might express concern about access to such information, others will seek it out. For example, a recent email solicitation sent to agents and brokers by an insurance marketing organization marked “For Licensed Insurance Agent/Advisor Use Only. Not for General Public” markets a proprietary tool for agents that is “Just in Time” for the upcoming enrollment period. This tool will “Make Medicare sales easier than ever!” by “securely import[ing] data directly from a client’s medicare.gov account including:
- Prescriptions filled
- Pharmacies used
- Healthcare providers utilized”
The tool includes a “built-in auto-sync feature” that will apparently keep such data “up-to-date.” The solicitation notes “Imagine all your clients’ Medicare data in one place.”
Pushing beneficiaries to establish MyMedicare accounts and in turn incentivizing agents and brokers and others to use such accounts as a means to counsel them about such options will invite misconduct. It doesn’t take much imagination to see how such information can be used inappropriately, and not “only for the purpose that it was offered and intended.”
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On September 19, 2019, Representative Frank Pallone, Jr., Chairman of the U.S. House Committee on Energy & Commerce, introduced the Lower Drug Costs Now Act (H.R. 3). As noted in The New York Times, the bill addresses the problem of skyrocketing prescription drugs costs. In a press release, Speaker Nancy Pelosi stated that “[t]he soaring price of prescription drugs is crushing Americans at the pharmacy counter, driving up health insurance premiums, and creating unaffordable costs for taxpayers who finance Medicare and Medicaid.”
The Lower Drug Costs Now Act gives the Secretary of the Department of Health & Human Services the authority to negotiate the costs of 250 drugs every year. According to a fact sheet on Speaker Pelosi’s website, these drugs will be drawn from a list of the most costly drugs in the U.S. “without competition from at least one generic or biosimilar on the market.” The fact sheet notes that “[i]n the first year alone, drugs representing more than half of all Medicare Part D spending, covering tens of millions of patients, would be subject to the negotiation process – including insulin.” The negotiated prices would also be available to all purchasers – not just Medicare beneficiaries.
The Act would also make improvements to beneficiary cost sharing, and cap out-of-pocket costs for beneficiaries at $2,000. In addition, if sufficient savings are generated, the funds could be reinvested in the Medicare program, potentially expanding coverage in areas historically lacking, such as vision, hearing and dental.
The Center for Medicare Advocacy has called for drug price negotiations since the creation of Medicare Part D. Lawmakers should embrace this opportunity for savings, and redirect these dollars back into health care, including additional dental, vision, hearing and home-based benefits, and protections for low-income beneficiaries.
- To learn more about the bill, please visit: https://www.speaker.gov/sites/speaker.house.gov/files/HR3%20Lower%20Drug%20Costs%20Now%20Act%20Backgrounder%209.23.19.pdf.
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In his September 16, 2019 comments on the Administration’s proposed revisions to the nursing facility Requirements of Participation, California State Attorney General Xavier Becerra writes that the proposed rule violates the 1987 federal Nursing Home Reform Law, the Social Security Act, the Affordable Care Act, and the Administrative Procedures Act. Beccera describes the proposed changes as “reckless” and urges the Administration to withdraw the proposed rule in its entirety.
The Attorney General sees the rule as consistent with the Administration’s “pattern of rolling back protections, subverting statutory requirements, subjecting residents of long-term care facilities to potential harm, and putting states on the hook to ensure no gaps emerge in safety and the public health.”
Specific proposals reducing protections in resident grievances, psychopharmacologic drugs, and infection control violate the Secretary’s “duty and responsibility” under the Reform Law to ensure that the standards of care, and their enforcement, “‘are adequate to protect residents’ health, safety, welfare, and rights and to promote the effective and efficient use of public moneys.’ 42 U.S.C. §1395i-3(f)(1); §1396r(f)(1).” CMS describes its deregulatory proposals as making CMS a “‘better business partner.’ 84 Fed. Reg. at 34737.”
The proposed rule is arbitrary and capricious and violates the Administrative Procedures Act, 5 U.S. C. §706(2)(A), (D), by removing protections for residents in infection control, nutrition services, and physical environment without adequate justification and by not adequately taking into account the harms proposed changes will cause residents. Proposed revisions to compliance and ethics programs as well as the quality assurance and performance improvement (QAPI) program evade statutory requirements mandated by the ACA.
Finally, the proposed rule “will harm public health and impose costs and obligations on states and state programs.” The Attorney General criticizes the proposal to create a “constructive waiver” process that allows facilities to receive a 35% reduction in the amount of a Civil Money Penalty (CMP) imposed against them even if they do not waive their right to formally contest the CMP in an administrative hearing. He writes, “Presumptively reducing the amounts of warranted penalties furthers the dangerous policy of CMS and HHS to reduce fines at the behest of industry, resulting in a nearly $13,000 drop in the average fine under the current administration as compared to 2016.”
Describing the reliance of Medicaid Fraud Control Units on CMS “to provide facility oversight and beneficiary protections through a strong regulatory structure,” he discusses the importance of CMPs in the regulatory scheme:
CMPs are an essential tool for regulators to ensure facility compliance and guarantee better performance in the future. Consequently, weakening or delaying their application hampers our ability to both punish bad actors and ensure improvement, and thereby puts beneficiaries’ health and lives at risk. The changes in the Proposed Rule decrease the dollar amount and frequency of penalties that – though rare and low in amount – nonetheless help safeguard Medicare and Medicaid beneficiaries. The threat of penalties is a deterrent to facilities engaging in abusive behavior. Eroding even these penalties enables unscrupulous operators to provide substandard care and receive minimal penalties, if these lapses are even brought to light. The absence of a reliable regulatory backstop could pose challenges to prosecutions of a variety of infractions, including wrongful evictions; inadequate staff training; and the absence of protection against abuse, neglect, and exploitation.
The Center for Medicare Advocacy and the Long Term Care Community Coalition also submitted comments on the proposed rule, joined by 19 other organizations. The Center and LTCCC agree with Attorney General Beccera that the proposed rule, if finalized, will endanger the health, safety, and well-being of residents across the country.
 Attorney General Xavier Beccera, “Attorney General Becerra Calls on Trump Administration to Withdraw Rule That Rolls Back Critical Protections for Nursing Home Residents” (Press Release, Sep. 17, 2019), https://oag.ca.gov/news/press-releases/attorney-general-becerra-calls-trump-administration-withdraw-rule-rolls-back.
 https://oag.ca.gov/system/files/attachments/press-docs/Nursing%20home%20regulations%20comment%20letter.pdf. Citing Jordan Rau, “Nursing Home Fines Drop As Trump Administration Heeds Industry Complaints,” Kaiser Health News (Mar. 15, 2019), https://khn.org/news/nursing-home-fines-drop-as-trump-administration-heeds-industry-complaints/.
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On September 20, 2019, the U.S. House of Representatives passed the Forced Arbitration Injustice Repeal (FAIR) Act. The FAIR Act prohibits pre-dispute arbitration agreements in consumer, employment, antitrust, and civil rights cases. The Act also prohibits any agreements or practices that interfere with an individual’s right to participate in joint, class, or collective action. Representative Hank Johnson (D-GA) and Senator Richard Blumenthal (D-CT) introduced the Act in February of this year (H.R. 1423 and S. 610, respectively).
In a press release, Rep. Johnson stated that “[t]he deck has been stacked against American consumers in favor of big business for far too long . . . The FAIR Act would level the playing field for all Americans.” Rep. Johnson added that “[a] privatized justice system is the ultimate injustice.”
Recently, the Centers for Medicare & Medicaid Services (CMS) finalized a rule reversing the 2016 ban on pre-dispute arbitration agreements in nursing homes. As of September 2019, nursing homes may begin requesting residents (or resident representatives) to sign voluntary pre-dispute arbitration agreements. The Center for Medicare Advocacy (the Center) is encouraging consumers not to sign these arbitration agreements and to try to rescind any pre-dispute arbitration agreement within 30 days of signing (which is their right under federal regulation 42 C.F.R. §483.70(n)(3)).
The Center has long called for an end to pre-dispute arbitration agreements and supports the FAIR Act.
- For more information about the FAIR Act, please visit: https://hankjohnson.house.gov/sites/hankjohnson.house.gov/files/documents/The%20FAIR%20Act%20One%20Pager%20.pdf.
- For more information about arbitration in nursing homes, please visit: https://www.medicareadvocacy.org/rule-allowing-pre-dispute-arbitration-agreements-in-nursing-homes-takes-effect/.
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Center for Medicare Advocacy Senior Policy Attorney Toby. S. Edelman has been selected to receive the Janet Wells Public Policy Leadership Award from the National Consumer Voice for Quality Long-Term Care, the national non-profit long-term care advocacy organization.
The Public Policy Leadership Award honors the tremendous contributions of an individual or organization to national long-term care policy and was re-named in 2012 in honor of longtime Consumer Voice/NCCNHR Policy Director, Janet Wells.
In naming Ms. Edelman, Consumer Voice said:
The lives of individuals receiving long-term care services and supports across the country have been improved as a result of your advocacy and leadership. You are an ardent supporter of robust protections for nursing home residents. Your passion and tenacity for quality care, effective oversight, and protection of rights for nursing home residents is unparalleled and serves as a model for all those who come behind you. Your strong advocacy over the past 40 years has resulted in policies and practices that protect and support residents, as well as prevented those that would have been harmful. Advocates, ombudsmen, policymakers, residents, family members and many others have relied on your in-depth knowledge, experience, and sage advice.
The Center congratulates Ms. Edelman on this honor, and is grateful for her passionate work on behalf of America’s nursing home residents.
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As part of our 2019-2020 webinar series, the Center for Medicare Advocacy is honored to partner with the Christopher and Dana Reeve Foundation to present Medicare for People with Paralysis.
Understanding Medicare is important to those who currently qualify for health coverage through Medicare, or may qualify in the future. This webinar includes information on eligibility, enrollment, and coverage – with a special emphasis on home health care and durable medical equipment including related laws, regulations, policies and practical tips to assist people living with paralysis to access home and community-based Medicare coverage. We will also discuss important factors in choosing between traditional Medicare and Medicare Advantage.
Register now at https://register.gotowebinar.com/register/2659626668997138188.
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