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Together with other beneficiary advocacy groups, the Center for Medicare Advocacy responded to several requests for comment from the Centers for Medicare & Medicaid Services (CMS) in December.  Below, we include summaries of these comments on:

1. Integrated Denial Notice: (Due Dec. 15, 2015)

The Center for Medicare Advocacy submitted comments to CMS on proposed revisions to Form CMS-10003-NDMPC, Notice of Denial of Medical Coverage (or Payment). Medicare health plans are required to issue this notice when a request for either a medical service or payment is denied in whole or in part. The purpose of the notice is to explain why the plan denied the service or payment and to inform a plan enrollee of their appeal rights.  The notice is also meant to explain Medicaid appeal rights to full dual eligible individuals who are enrolled in a Medicare health plan that is also managing their Medicaid benefits.

The Center’s comments primarily focus on strengthening beneficiary protections and making sure that those receiving this notice have clear and consistent information regarding their appeal rights.  Specifically the Center suggested the Notice of Denial of Medical Coverage incorporate some of the same information contained in a Medicare Summary Notice which is given to a Medicare beneficiary in traditional Medicare.  For example, the Center suggested that the Notice of Denial of Medical Coverage, like the Medicare Summary Notice, include the exact date by which an appeal must be made as well as a model form for enrollees to use when filing an appeal.

2. Marketplace: (Due Dec. 21, 2015)

Request for comment: Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2017 [CMS–9937–P] (see:

Medicare Notices

The Center applauds CMS for recognizing the current absence, and importance, of providing notification to Exchange enrollees of their possible Medicare eligibility. We appreciate the request for comments on how best to implement such notices, and are eager to participate in this process.

Currently, individuals not automatically enrolled in Social Security receive no notice about nearing Medicare eligibility, and those in the Marketplace receive no notice that their premium tax credit eligibility will end upon Medicare eligibility. No federal agency is currently responsible for notifying people new to Medicare who are not already collecting Social Security benefits about enrollment rules and obligations. These individuals receive no prompt about the need to actively enroll in Medicare and what factors to consider as part of that decision-making process.

Coupled with this lack of notice, individuals are responsible for taking several proactive steps. These include: enrolling in Medicare in a timely way, canceling the Marketplace plan, and notifying the Marketplace plan about Medicare eligibility. The consequences for delayed action or lack of action in these areas are severe. Individuals may be faced with gaps in coverage, lifetime penalties and higher taxes. Frequently individuals are unaware that they must act, and are unfamiliar with the complicated process of enrolling in Medicare. Due to this information gap, individuals over age 65 may miss their Medicare enrollment window, people with disabilities may mistakenly decline Part B, and people already collecting Social Security retirement may mistakenly decline Part B.

Therefore, it is imperative that all individuals who may become eligible for Medicare, regardless of existing coverage, receive a notice about Medicare eligibility rules and obligations. Though we support notices sent broadly, we appreciate that the transition from the Marketplace to Medicare carries the additional concern regarding the loss of premium tax credits. We therefore strongly support sending notices to these individuals. We believe that these notices are most effective if they come from the Federal or State Marketplace. We encourage CMS to develop a comprehensive system to notify individuals in the Marketplace about nearing Medicare eligibility. Ideally, this system would include multiple types of notification and educational content that is appropriately timed ahead of an individual’s Initial Enrollment Period (IEP) for Medicare.

Network Adequacy

In general, we strongly support the Department of Health and Human Services' (HHS) intent to strengthen network adequacy standards for Qualified Health Plans (QHPs).  Given that HHS is considering using standards similar to those used in Medicare Advantage (MA), we offer the following comments based upon our experience working with MA plan enrollees. In our experience, the current MA standard for notifying affected enrollees is woefully inadequate.  We urge HHS to impose a more stringent requirement on QHPs with more advance notice to enrollees, along with an opportunity to act if an individual’s provider(s) no longer contracts with the plan.

3. Medicare-Medicaid Plan Quality Ratings Strategy (Due Dec. 21, 2015)  

Request for comment:

The Center supports and appreciates CMS’s and the Medicare-Medicaid Coordination Office (MMCO) efforts to develop a Quality Ratings Strategy for Medicare-Medicaid Plans (MMPs).  All consumers should have access to quality information before enrolling in a health care plan and the Quality Ratings Strategy is an important step in cultivating and sharing medical, administrative, and quality information about long-term services and supports (LTSS).

The Center also recognizes that some people needing residential care will live in congregate care settings other than nursing facilities. While rebalancing the long-term care system to reduce its exclusive reliance on nursing homes is an important goal that both expands beneficiaries’ options (a goal of person-centered and person-directed care) and is strongly favored by many older people, it is also important to assure high quality of care in the “non-nursing home” congregate settings where beneficiaries may live.  Moving older people from poor quality nursing homes to poor quality residential care facilities is no improvement; it is a meaningless distraction from the goal of assuring that people receive good care in whatever congregate living setting they choose.

The Center supports use of a measure to reduce inappropriate use of antipsychotic drugs in nursing home residents, but urges CMS to ensure that the measure is sufficiently broad to include (1) both atypical and conventional antipsychotic drugs, (2) drugs given to short-stay and long-stay residents, and (3) drugs given to residents, regardless of the payer (Medicare Part A or Medicare Part D).  The different definitions of antipsychotic drug use yield highly varying conclusions about the rate of inappropriate antipsychotic drug use in nursing facilities.[1]  The broadest possible definition is appropriate to assure that all inappropriate antipsychotic drug use is recorded and reported.

4. Discharge Planning: (Due Jan. 4, 2015)

The Proposed Regulation is located at 80 Fed. Reg. 68126 (Nov 3, 2015).  It addresses discharge planning requirements for Medicare-participating hospitals, Critical Access Hospitals (CAHs), and Home Health Agencies (HHAs).

The Center for Medicare Advocacy (the Center) appreciates the comprehensive approach taken by CMS in developing its discharge planning proposed rule. The proposed rule focuses on reducing avoidable hospital readmissions and improving patient care, with particular attention to the psychiatric and behavioral health needs of patients, including substance abuse disorders. The proposed rule recognizes the importance of the “Improving Medicare Post-Acute Care Transformation Act of 2014” (The Impact Act of 2014), Pub. L. 113-185.  The IMPACT Act should promote better coordination among HHAs, SNFs, IRFs (Inpatient Rehabilitation Facilities), and LTCHs (Long-term Care Hospitals).  See §2 of the IMPACT Act, which added new §1899B to the Social Security Act (SSA) at https://www.; and see

Point-by-Point Comments:

Design (Proposed §483.43(a))

Having input from the hospital medical staff, nursing leadership, and other pertinent services will ensure adequate input in the development of the discharge planning process. This input is critical.  Even so, a clearly defined “point person” is essential to making the design work happen.  This person should have sufficient authority and resources, including staff, to assure that the design process is completed within a specific and well-published timeframe.

Applicability (Proposed §482.43(b))

The Center is in agreement with CMS’ proposal to extend applicability of discharge planning services to certain observation patients such as persons who are undergoing same day surgeries and other outpatient same-day procedures where sedation or anesthesia is involved.   We urge CMS to require discharge planning for all patients who stay overnight in a hospital but are classified as observation status “outpatients.” Without such a discharge planning requirement, these patients are in particular jeopardy of being poorly served after hospitalization.

Discharge Planning Process (Proposed §482.43(c))

We agree with the general breadth of the proposed discharge planning process, particularly the requirement that discharge planning should begin as early in the hospital stay as possible; that the anticipated post-discharge goals, preferences, and needs of the patients are considered; and that an appropriate plan is developed consistent with a patient’s needs and requests, including any co-morbidities.  We also find the reference to the holding in the Supreme Court’s decision, Olmstead v. L.C., 527 U.S. 581 (1999) to be most appropriate. Likewise, we appreciate CMS’ direction that hospitals must continue to abide by federal civil rights laws, including Title VI of the Civil Rights Act of 1964.

Proposed combining of §482.43(b)(2) and §482.43(c)(1) into a single requirement at §482.82(c)(1)

With respect to the proposal to combine and revise the existing requirements of §482.43(b)(2) and §482.43(c)(1) into a single requirement at §482.82(c)(1). We agree that having a registered nurse, a social worker, and other professionals involved are good points. What is missing is a requirement of physician involvement (beyond certification), particularly for persons in geriatric or related specialties, depending on patient need.  Proposed §482.82(c)(2) raises the important issue of a specific time period in which discharge planning should begin.

Discharge to Home (Proposed §482.43(d))

The proposal to re-designate and revise the current requirement at §482.43(c)(5) to become §482.43(d), discharge to home represents a useful expansion. It is a recognition of the importance of care in the home, or residence, or in one’s community (when there is no home).  It also acknowledges the importance of appropriate follow-up care by one’s primary care provider (PCP) or specialist.  Extending this requirement to HHAs, hospice services, or any other type of outpatient health care service is extremely important. Similarly, assuring that proper discharge planning includes instructions about follow-up care is essential. 

New Post-Discharge Follow-Up Process (Proposed §482.43(d)(4))

The proposed rule is designed to reduce adverse events post-discharge, with a particular emphasis on medication compliance.  We agree with the notion that information about what to look for, in terms of signs of a possible adverse event, is helpful.

Transfer of Patients to another Health Care Facility (Proposed §482.43(e))

We agree that existing requirements with respect to the discharge and transferring of patients to other facilities should continue. The requirements to transfer medical information, discharge orders, etc., are essential.  We think that in addition to patient specific information, the information to be transferred should include a standardized set of contact information, starting with how to contact the Medicare Ombudsman as well as social services agencies, including legal assistance providers and sources to assist beneficiaries in accessing necessary medications, supports and services.

Requirements for Post-Acute Care Services (Proposed §482.43(f))

We support the re-designation of §482.43(c)(6) through (8) as new §482.43(f), with the addition of IRF and LTCH PAC providers, and extending the requirements consistent with the IMPACT Act.  We also agree that the requirement that Medicare-participating hospitals provide a list of available Medicare-participating HHAs and SNFs is useful, including providing information, if known, about providers that participate in a managed care organizations’ network.

Home Health Agency Discharge Planning Proposal (new 42 CFR §484.58)

The Center is pleased that CMS is proposing to update the HHA discharge requirement by adding proposed §484.58.  This rule would address the requirements of the IMPACT.  CMS is also soliciting comments on the timeline for HHA implementation of proposed discharge planning requirements:  addressing the needs of HHA patients, including the language barrier issues, mobility needs, and visual concerns, and physical, mental, and cognitive issues.  Further, the Center is pleased that this rule will require that the physician responsible for the home health plan of care of a patient be involved in the ongoing process of establishing the discharge plan.

HHA Discharge or Transfer Summary Content (Proposed §484.58(b))

The Center agrees with the bulleted list of items to be included in the discharge patient’s demographic information, including but not limited to name, sex, date of birth, race, ethnicity, and preferred language; contact information of the physician responsible for the home health plan of care; advance directive, if applicable; course of illness/treatment; procedures; diagnoses; laboratory tests and the results of pertinent laboratory and other diagnostic testing.

Critical Access Hospital (CAH) Discharge Planning (Proposed §485.642(a))

The Center is pleased that CMS has outlined a design for CAH discharge planning.  See (Proposed §485.642(a)). As the proposal points out, there are currently no CAH discharge planning conditions of participation (CoP). The proposal notes that the current CoPs at §485.631(c)(2)(ii) provides that a CAH must arrange for, or refer patients to, needed services that cannot be furnished at the CAH.  The Center agrees that there is benefit in improving the transfer and discharge requirements from an inpatient acute care facility, such as CAHs and hospitals.

Applicability (Proposed §485.642(b)

The Center is pleased that CAHs, under the CMS proposal, will be required to have a discharge planning process that is designed to identify the discharge planning needs of each patient and to develop an appropriate discharge plan; that physicians must be involved and certify that the individual is about to be discharged or transferred to a hospital within 96 hours after admission to the CAH. We find, however, that a 96 hour wait before discharge planning commences is far too long; that discharge planning should begin at the beginning of hospitalization, whether the patient is in a CAH or in any other hospital setting.

Discharge Planning Process (Proposed §485.642(c))

We agree with the scope of services to be included in the proposed discharge planning process for CAHs, including identifying the anticipated post-discharge goals, preferences, and discharge planning needs of the patients.  We also agree that a registered nurse, social worker, or other personnel qualified in accordance with the CAH’s discharge planning policies must coordinate the discharge needs evaluation and development of the discharge plan.  We recommend that the process begin at admission as opposed to a 24 hour delay.

Discharge to Home (Proposed §485.642(d)(1) through (3))

The Center is pleased with the establishment of a new “discharge to home” standard.  This requirement focuses on caregiver support, including caregiver instruction, medication management, and patient understanding of written discharge instructions.  These important additions should enhance patient well-being and provide concrete steps to evaluate the success of discharge planning efforts.

Transfer of Patients to another Health Care Facility (Proposed §485.642(e))

The Center supports adding the proposed rule governing the transfer of patients to another health care facility.  We agree with the proposed list of demographic information to be collected, in addition to date of birth, race, ethnicity and preferred language.   implantable device(s), if any; all special instructions or precautions for ongoing care; as appropriate patient’s goals and treatment preferences; and any other necessary information including a copy of the patient’s discharge instructions; the discharge summary; and any other documentation as applicable, to ensure a safe and effective transition of care that supports the post-discharge.

[1]See Center for Medicare Advocacy, “Antipsychotic Drugs and Nursing Home Residents: What Do the Different Numbers Mean?”, CMA Alert (Mar. 12, 2015),

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