- The Growing Disparity Between Medicare Advantage and Traditional Medicare: CMS Publishes Final MA Telehealth Benefit Rule
- How to Prevent Re-Hospitalization Of Nursing Home Residents: More Physicians and Nurses In Nursing Homes
- Joint Statement: Federal Report Finds That CMS Failed to Properly Oversee State’s Nursing Home Investigations
- Latest Issue: Elder Justice: What “No Harm” Really Means for Residents
6th Annual National Voices of Medicare Summit &
Rep. John Lewis will deliver this year’s Sen. Jay Rockefeller Lecture
Also joining us: Sen. Jay Rockefeller; Rep. Joe Courtney; Rep. Rosa DeLauro; Judy Feder of Georgetown University; Tricia Neuman, Senior VP, Kaiser Family Foundation; Henry Claypool, Technology Policy Consultant at AAPD and Former Director of the HHS Office on Disability; Cathy Hurwit, Former Chief of Staff for Rep. Jan Schakowsky; film writer Anna Reid-Jhirad, Ben Belton, AARP Global Partner Engagement Director; and home care worker Susie Young, courtesy of SEIU._______________
May 9, 2019
Kaiser Family Foundation
CLE Credit Available!
The Centers for Medicare & Medicaid Services (CMS) published a Final Rule this week implementing provisions of the Bipartisan Budget Act of 2018. As detailed in this Rule, Medicare Advantage (MA) plans will be allowed to offer telehealth services as a basic benefit starting in 2020. The Rule limits this telehealth benefit to services available under Medicare Part B which have been identified as “as clinically appropriate to furnish through electronic information and telecommunications technology . . .” and not payable under Section 1834(m) of the Social Security Act. CMS makes clear that MA enrollees will have the ability to decide whether to receive Part B services in-person or through the telehealth benefit, although different cost sharing may apply. In addition to this newly created basic benefit, MA plans will also be able to offer supplemental telehealth services not covered by traditional Medicare.
While expanding telehealth services may be beneficial to MA enrollees, the Center for Medicare Advocacy is concerned by the growing disparity between MA and traditional Medicare. As outlined in our Medicare Platform, parity is essential to ensuring consumer protections and quality coverage extend to all Medicare beneficiaries. Although traditional Medicare does have limited telehealth coverage, Congress’s decision to allow MA plans to offer additional telehealth services as a basic benefit is just one more example of the growing disparity between traditional Medicare and MA, and reinforces the Administration’s efforts to steer individuals to MA plans. The Administration and Congress must ensure that beneficiaries in traditional Medicare have the same benefits and access to the same services as MA enrollees, including those created by the new telehealth benefit.
 Medicare and Medicaid Programs; Policy and Technical Changes to the Medicare Advantage, Medicare Prescription Drug Benefit, Programs of All-Inclusive Care for the Elderly (PACE), Medicaid Fee-For-Service, and Medicaid Managed Care Programs for Years 2020 and 2021, 84 Fed. Reg. 15680, 15683 (Apr. 16, 2019), available at https://www.govinfo.gov/content/pkg/FR-2019-04-16/pdf/2019-06822.pdf.
 See id. (referring to Medicare’s limited coverage of telehealth services).
 See generally, David Lipschutz, As Medicare Enrollment Period Draws to a Close, MA Steering Continues – Advocates & Members of Congress Write Letters of Concern to CMS, Center for Medicare Advocacy (Nov. 30, 2018), https://www.medicareadvocacy.org/as-medicare-enrollment-period-draws-to-a-close-ma-steering-continues-advocates-members-of-congress-write-letters-of-concern-to-cms/.
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Reducing the re-hospitalization of nursing home residents is a constant and important public policy goal. At present, the goal is largely met by imposing financial sanctions against hospitals and skilled nursing facilities (SNFs) when residents are re-hospitalized. A better way of reducing re-hospitalizations of nursing home residents would be ensuring that residents get the care they need in the SNFs.
A new study of residents in traditional Medicare who were discharged to nursing homes between January 2012 and October 2014 finds that residents who were not seen by a physician or advanced practitioner (10.4% of the total) had a higher likelihood of a poor outcome – return to the hospital, death, or failure to return successfully to the community. Ensuring that physicians or other advanced practitioners see residents after they are admitted to a nursing home could lead to fewer re-hospitalizations.
For many decades, inadequate nurse staffing levels have been correlated with re-hospitalizations of residents. A three-year study of non-clinical factors that contributed to the re-hospitalization of residents, published thirty years ago, found “insufficient and inadequately trained nursing staff” who could not meet residents’ complex health care needs as a cause of residents’ re-hospitalizations. A paper by Kaiser Family Foundation and Lake Research Partners in 2010 confirmed earlier findings about the multiple causes of re-hospitalizations and the need to increase nurse staffing levels in nursing facilities.
It is time to address the actual causes of re-hospitalizations of nursing home residents by providing better health care in SNFs.
 Affordable Care Act, §3025, 42 U.S.C. §1395ww(q), created the Hospital Readmissions Reduction Program.
 Protecting Access to Medicare Act (2014), §215, 42 U.S.C. §1395yy(h), created a Value-Based Purchasing Program for SNFs. Beginning in fiscal year 2019 (services furnished on or after Oct. 1, 2018), the Centers for Medicare & Medicaid Services reduces Medicare payments to SNFs that have high rates of re-hospitalizations of their residents.
 Kira L. Ryskina, et al, “Assessing First Visits By Physicians To Medicare Patients Discharged To Skilled Nursing Facilities,” Health Affairs 38, No. 4 (2019): 528-536, https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2018.05458 (abstract).
 Center for Medicare Advocacy, “More Nurses in Nursing Homes Would Mean Fewer Patients Headed to Hospitals” (CMA Alert, Mar. 10, 2011), https://www.medicareadvocacy.org/more-nurses-in-nursing-homes-will-mean-fewer-patients-headed-to-hospitals/.
 J.S. Kayser-Jones, Carolyn L. Wiener, and Joseph C. Barbaccia, “Factors Contributing to the Hospitalization of Nursing Home Residents,” The Gerontologist (1989).
 Michael Perry, Julia Cummings (Lake Research Partners), Gretchen Jacobson Tricia Neuman, Juliette Cubanski (Kaiser Family Foundation), “To Hospitalize or Not to Hospitalize? Medical Care for Long-Term Care facility Residents; A Report Based on Interviews in Four Cities with Physicians, Nurses, Social Workers, and Family Members of Residents of Long-Term Care Facilities (Oct. 2010), https://kaiserfamilyfoundation.files.wordpress.com/2013/01/8110.pdf.
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GAO Findings. Federal law requires state survey agencies to investigate allegations of resident abuse and neglect stemming from complaints and facility-reported incidents. About three-quarters of all abuse violations nationwide stem from these investigations. Unfortunately, a recently published management report by the U.S. Government Accountability Office (GAO) concludes that the Centers for Medicare & Medicaid Services (CMS) failed to oversee the nursing home inspection process in Oregon to ensure compliance with this requirement. According to the GAO, Oregon’s Adult Protective Services (APS), not the state survey agency, has been investigating complaints and facility-reported cases of abuse in the state for at least fifteen years. The GAO’s report notes that, unlike state surveyors, APS investigators “are not trained in, or focused on, investigating abuse according to the federal nursing home regulations.”
CMS Response. CMS claims that it became aware of this astounding failure in oversight in July 2016, but the GAO notes that evidence suggests CMS previously became aware of Oregon’s improper practice in the early 2000s. Oregon’s Department of Human Services communicated to the GAO that CMS had known about the practice for “many years and said state policy changes made in 2002 regarding nursing home abuse complaints and facility-reported incidents were made at the direction of CMS.” CMS has expressed that, while there is no indication that other states are out-of-compliance with the federal requirements, “their current approach for overseeing survey agencies does not specifically examine whether survey agencies are taking responsibility for investigating all nursing home complaints and facility-reported incidents.”
|Fundamentally, the GAO’s findings provide further substantiation that CMS and the state agencies too often fail to protect residents or hold providers accountable for abuse and neglect.|
Report’s Implications. CMS’s failure means that the federal agency has not be able to properly penalize deficient nursing homes for complaint and facility-reported cases of resident abuse for fifteen years. Additionally, the failure means that Medicare’s Nursing Home Compare website does not provide the public with an accurate accounting of nursing home quality in Oregon. For example, as the GAO report notes, a 2015 substantiated allegation of sexual abuse by a staff member is not on Nursing Home Compare. Similarly, 2016 APS investigations of resident-to-resident abuse were not reported to CMS, making CMS unable to identify the nursing home’s failure “to prevent, investigate, or report abuse, nor could federal nursing home deficiency penalties be imposed.”
Key Recommendation. Among several recommendations, the GAO called on CMS to evaluate the nursing home inspection process of all states to ensure state survey agencies are meeting federal requirements.
Concerns for Residents and Families. Our organizations are extremely concerned by the GAO’s findings and their implications for basic resident safety and accountability. As the report indicates, CMS’s failure to properly oversee the nursing home inspection process may extend to other states throughout the country. Until CMS completes its nationwide evaluation of nursing home inspection processes, which it has agreed to do, there is no way of adequately determining whether countless other cases of resident harm have been left unaccounted for by the federal government and for how long. Fundamentally, the GAO’s findings provide further substantiation that CMS and the state agencies too often fail to protect residents or hold providers accountable for abuse and neglect. Our organizations call on Congress to hold a hearing into CMS’s failure to properly oversee the nursing home inspection process in Oregon and potentially other states.
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Elder Justice: What “No Harm” Really Means for Residents is a newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a “no harm” deficiency is and what it means for nursing home residents. Our latest issue has real stories from nursing homes in New York, New Jersey, and Kansas.
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The Center for Medicare Advocacy is a non-profit organization.