Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

October, 2013 – Medicare Annual Election period, and the ACA Marketplaces and Other Issues

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1. PRESENTATION:  MEDICARE ANNUAL ELECTION PERIOD & THE MARKETPLACES

Medicare Annual Coordinated Election Period (ACEP) – 10/15/13 – 12/7/13 

During the Annual Coordinated Election Period (ACEP) people with Medicare can change their choice of health coverage (whether they receive that coverage through a private Medicare Advantage plan or traditional Medicare), and add, drop or change Medicare Part D drug coverage.

For more information and to get help reviewing coverage options:

  • Visit www.medicare.gov to see plan coverage and costs available in various geographic areas, and to enroll in a new plan or make a change.  Open Enrollment information is available in Spanish.
  • Call 1-800-MEDICARE (1-800-633-4227) for around-the-clock assistance to find out more about coverage options.  TTY users should call 1-877-486-2048.  Multilingual counseling is available.
  • Review the 2014 Medicare & You handbook.  It is accessible online at www.medicare.gov/pubs/pdf/10050.pdf, and it has been mailed to the homes of people with Medicare.
  • Get one-on-one counseling assistance from the local State Health Insurance Assistance Program (SHIP).  Local SHIP contact information can be found:

The Health Care Reform Marketplace is NOT for People with Medicare

The Health Insurance Marketplace, created by the Affordable Care Act (ACA), opened for business on October 1, 2013.  Uninsured people can shop for and purchase health insurance on the Marketplace. They can also apply for public programs on the Marketplace like Medicaid and tax credits to help pay for the costs of private insurance.

People with Medicare DO NOT need to visit the new Health Insurance Marketplace. According to the Department of Health and Human Services, it is illegal for a broker, agent or health insurance company to sell someone with Medicare an ACA marketplace plan. 

Remember, the Marketplace does not offer Part D prescription drug plans, Medicare Advantage Plans or Medigap plans. If a Medicare beneficiary has questions about Medicare or would like to change their Part D or Medicare Advantage plan during the Annual Election Period (Oct 15 through Dec 7), they should visit www.medicare.gov or call 1-800-MEDICARE.

Beware of Scammers Trying to Sell Marketplace Plans to People with Medicare

The Federal Trade Commission has reported several recent scams targeted at older people. Scammers are calling and emailing people with Medicare and telling them Obamacare requires them to change their insurance and buy a marketplace plan. Oftentimes, these scammers will ask for personal information like Social Security numbers or bank accounts. Do not give them this information!

We encourage beneficiaries and their advocates to report all attempts at scams like this to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/. 

2. LEGISLATIVE UPATE: MEDICARE & THE FEDERAL BUDGET

The Short-Term Budget Deal and Potential Implications for Medicare

On October 16, 2013, Congress passed a budget deal, “Continuing Appropriations Act, 2014” (H.R. 2775); see text of legislation at: http://www.scribd.com/doc/176700236/Text-of-Senate-budget-agreement

  • Federal government funded through January 15, 2014
  • Debt limit extended until February 7, 2014
  • Bipartisan budget conference committee responsible for submitting a broad budget plan to Congress by December 13, 2013

Unanswered questions/things to look for include:

  • What funding level will the budget conference committee agree to (if any)?
    • Will it include sequester level funding (including 2% Medicare provider cuts)
    • What would replace sequester cuts?
  • Will the committee address “entitlement reform” – including Medicare – in either the short-term or long-term?

Medicare Physician Payment Activities (Sustainable Growth Rate, aka SGR)

  • Current “fix” expires Dec. 31, 2013 (Leading to approx. 25% cut in payment in 2014 if no Congressional action)
  • House Energy & Commerce Committee passed a bill in July 2013
    • Bill did not include “pay-fors”
  • House Ways & Means, Senate Finance Committee pending release of proposals/legislation
  • “ Extenders” – including Qualified Individual (QI) program and outpatient therapy cap exceptions process expire at end of year

3. MISCELLANEOUS UPDATES

Web Portal Development for Medicare Secondary Payer (MSP) Claims Information

On September 20, 2013, the Centers for Medicare & Medicaid (CMS), the Medicare agency, announced in the federal register an interim final rule with a comment period. The interim final rule sets out content detail for the web portal and information system that is being developed by CMS through which MSP conditional payment amount information will be made available to beneficiaries, their attorneys and insurers.  Conditional payments amounts relate to claims initially paid by Medicare for which a third party is liable. Comments on the interim final rule are due by 5 p.m. on November 19, 2013, the effective date of the interim final regulation. 

CMS expects to implement the web portal information system no later than January 1, 2016.  See 78 Fed. Reg. 57800-57806.  See http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/pdf/2013-22934.pdf.  The web portal is a called for by the “Strengthening Medicare and Repaying Taxpayers (SMART) Act of 2011.”   Regulations implementing SMART Act provisions amend 42 C.F.R., Part 411 by adding §411.39 (Automobile and liability insurance (including self-insurance), no fault insurance, and workers' compensation: Final conditional payment amounts via Web portal). See also the Center’s “Weekly Alert” on the web portal and the SMART Act at: https://www.medicareadvocacy.org/medicare-secondary-payer-web-portal-to-collect-data-on-conditional-payment-amounts-and-claims-detail/.   

Medicare Summary Notices (MSNs)

Post Windsor Updates (Supreme Court DOMA Decision)

  • Eligibility for Advance Payments of the Premium Tax Credit and Cost-Sharing Reductions in ACA Marketplaces.  For purposes of the premium tax credit and cost-sharing reductions, the Center for Consumer Information and Insurance Oversight (CCIIO) of the Centers for Medicare & Medicaid Services (CMS) announced that the federally-facilitated Marketplace (FFM), established under the Affordable Care Act (ACA), will treat same-sex spouses the same as opposite-sex spouses. See http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/marketplace-guidance-on-irs-2013-17.pdf.  The CCIIO announcement is based on Internal Revenue Service (IRS) Ruling 2013-17 – Aug. 29, 2013. See http://www.irs.gov/uac/Newsroom/Treasury-and-IRS-Announce-That-All-Legal-Same-Sex-Marriages-Will-Be-Recognized-For-Federal-Tax-Purposes;-Ruling-Provides-Certainty,-Benefits-and-Protections-Under-Federal-Tax-Law-for-Same-Sex-Married-Couples.  The IRS website states that “Treasury and the IRS will begin applying the terms of Revenue Ruling 2013-17 on Sept. 16, 2013, but taxpayers who wish to rely on the terms of the Revenue Ruling for earlier periods may choose to do so, as long as the statute of limitations for the earlier period has not expired.” The ruling does not apply to Civil Unions and Domestic Partnerships.
  • Guidance post-DOMA for Medicaid and the Children’s Health Insurance Program (CHIP) – Important to Medicaid expansion.  CMS has issued guidance that allows states to decide whether to recognize same-sex marriages for purposes of Medicaid/CHIP eligibility. Generally, CMS will recognize same-sex marriages that are (1) recognized by the state or territory in which the applicant or beneficiary resides, or (2) were celebrated in accordance with the laws of any state, territory, or foreign jurisdiction.  Given the federal-state nature of the Medicaid and CHIP programs, however, states and territories are permitted to apply their own choice-of-law rules in deciding what law governs the determination of whether a couple is lawfully married.  Accordingly, a state is permitted and encouraged, but not required, to recognize same-sex couples who are legally married under the laws of the jurisdiction in which the marriage was celebrated as spouses for purposes of Medicaid and CHIP.  The Medicaid and CHIP recognition guidance does not apply to Civil Unions and Domestic Partnerships See: http://www.medicaid.gov/Federal-Policy-Guidance/downloads/SHO-13-006.pdf.

4.  FEDERAL COMMISSION ON LONG-TERM CARE

The federal Commission on Long-Term Care was created by the American Taxpayer Relief Act of 2012 (the so-called "Fiscal Cliff" bill).  The Commission comprised 15 appointees, including Center for Medicare Advocacy Founder and Executive Director, Judith Stein.  The Commission was tasked with developing "a plan for the establishment, implementation, and financing of a comprehensive, coordinated, and high-quality system that ensures the availability of long-term services and supports for individuals in need of such services and supports …"

The Commission first met on June 27, 2013.  Following a truncated deliberative process, on September 12, 2013, the Commission held a statutorily required final vote on a package of recommendations.  The Commission voted 9-6 to put forward a report "as the broad agreement of the Commission." The Commission publicly released its full report on September 18, 2013.

Five of the six Commissioners who voted against the report issued alternate recommendations to address the challenges facing our country's long term services and supports (LTSS) system.  The five commissioners who issued the alternative recommendations are: Judith Stein, Founder & Executive Director, the Center for Medicare Advocacy, Inc. (CMA); Henry Claypool, Executive Vice President for Policy at the American Association of People with Disabilities (AAPD; Laphonza Butler, President, SEIU-ULTCW; Lynnae Ruttledge, Co-Vice Chair of the National Council on Disability (NCD); and Judy Feder, Urban Institute Fellow and Professor, Georgetown Public Policy Institute.

While recognizing the effort of the entire Commission and its staff during an unusually compressed three-month timeframe, along with the broad range of views among the Commissioners, the above five Commissioners concluded that the recommendations of the Commission in its final report do not fulfill its comprehensive charge.                         

5.  LITIGATION UPDATES

  • Jimmo v. Sebelius (Improvement Standard) No. 11-cv-17 (D.Vt. filed 1/18/11).  As reported during previous Alliance calls, the Settlement in Jimmo was approved on January 24, 2013 during a scheduled fairness hearing.  With the settlement now officially approved, CMS is tasked with revising its Medicare Benefit Policy Manual and numerous other policies, guidelines and instructions to ensure that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS must also develop and implement a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve.
  • For more information, see the Center’s website at: https://www.medicareadvocacy.org/hidden/highlight-improvement-standard/
  • Bagnall v. Sebelius (Observation Status) No. 3:11-cv-01703 (D. Conn., filed 11/3/2011). In November 2011, the Center for Medicare Advocacy and the National Senior Citizens Law Center filed a class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered "outpatient observation" rather than an inpatient admission. When hospital patients are placed on observation status they are labeled "outpatients," even though they are often on a regular hospital floor for many days, receiving the same care as inpatients.  Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare coverage of post-hospital nursing home care, people on observation status do not have nursing home coverage.  They must either privately pay the high cost of nursing care or forgo that skilled care.  The number of people placed on observation status has greatly increased in recent years.  Unfortunately, on September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit.
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