Special Alert - Center Memorandum: Medicare Improvements for the Biden Administration

Center for Medicare Advocacy Issues Transition Memorandum:
Medicare Improvements for the Biden Administration

The Center for Medicare Advocacy (the Center) looks forward to working with the incoming Biden Administration. In a Memorandum, submitted to Transition leaders on December 18, we recommend a number of measures that the new Department of Health and Human Services (HHS) and its Centers for Medicare & Medicaid Services (CMS) can take administratively to strengthen Medicare for beneficiaries.

Below we provide an Executive Summary of the Memorandum, as well as a link to our legislative Medicare Platform. For more information, the hyperlinked headers below will take you to the full Memorandum, which is also posted on our website at https://medicareadvocacy.org/transition-memo-2020/.

Executive Summary: Administrative Measures

Americans value Medicare. For decades it has added to the health and economic security of families nationwide. But Medicare needs attention to ensure all beneficiaries receive comprehensive coverage and equitable treatment. This is particularly true given the vulnerabilities of older people and people with disabilities, Medicare’s beneficiaries, as demonstrated by the COVID virus.  Medicare improvements are necessary to successfully respond to the pandemic. It is time to build a better Medicare for all who rely on it now, and will in the future.

To strengthen and support Medicare, the Center for Medicare Advocacy recommends the following administrative actions that would improve access to coverage and quality care for all people who rely on Medicare. These recommendations do not require legislation.  They are within the authority of the Department of Health and Human Services (DHHS) and the Centers for Medicare & Medicaid Services (CMS).

1. Strengthen Protections for Nursing Facility Residents

The Problem: The COVID pandemic has brought to public awareness the deadly consequences of the combination of poor care, inadequate staffing levels, insufficient infection protections, and the systemic roll back of regulations intended to ensure good care for residents.

Administrative Action:  

• Enforce infection control and other quality of care requirements to prevent diseases like Coronavirus from taking hold in skilled nursing facilities.
• Implement comprehensive staffing ratios to bring more qualified workers to care for our most vulnerable citizens.
• Expand training requirements to help upgrade skills and employment for aides and other direct care workers.
• Review and revise the Medicare payment model (Patient Driven Payment Model/ PDPM) and quality measure incentives to encourage access to appropriate staffing and all necessary, statutorily authorized care.

2. Redefine Inpatient Hospital Status – Increase Access to Necessary Care

The Problem: Currently, Medicare beneficiaries can spend many days in the hospital only to find they have been classified by the hospital as “outpatients,” and/or in observation status. As a consequence, they face barriers to Medicare-covered post-hospital nursing home care, which requires a prior inpatient hospital stay. An outpatient vs, inpatient label can also limit access to home health care given the incentives of the 2020 Medicare home health payment model. Further, since outpatient hospital care is covered by Medicare Part B, beneficiaries who only have Medicare Part A have no coverage at all for an outpatient/observation hospital stay.

Administrative Action:

• Revise all policies and regulations that define inpatient hospital care to include all care provided in the hospital, including Observation Status, when patients remain in the hospital for more than 24 hours.
• Exercise CMS’ authority under existing law to define hospital “inpatient” care to include all time spent in the hospital.
• Count all time spent in “outpatient” hospital observation status toward the prior inpatient hospitalization requirement for Medicare coverage of skilled nursing facility care.
• Consider patients who begin home health care after time spent in “outpatient” hospital/ observation status as inpatient admissions to home health care, not “community” admissions, as provided by the 2020 Medicare home health PDGM payment model.
• Rescind the Outpatient Prospective Payment Surgical System (ASC) Final Rule (12/2/2020) that will increase the pretense that patients cared for in hospitals are outpatients, effective January 1, 2021.  By eliminating the “Hospital Inpatient Only List,” this new rule will dramatically increase hospitals classifying patients as outpatients, which creates significant barriers to post- hospital care, leaves patients who do not have Part B fully liable for their hospital care, and increases costs to Medicare Part B.

3. Ensure Access to Medicare-Covered Home Health Care

The Problem: COVID reminds us that most people want to remain home to receive needed care and that providing care at home is often safer for the patient and patient’s community. Unfortunately, Medicare beneficiariesare increasingly unable to obtain Medicare-covered home health care for which they are eligible under the law. This is particularly true for people with on-going conditions and care needs, and for those who need home health aide services.  Ensuring access to home health should be considered as an essential component of the new administration’s work on Home and Community Based Services (HCBS).

Administrative Action:

• Enforce existing law to ensure access to all necessary Medicare-covered services for those who qualify under the law.
• Audit and monitor home health providers to ensure they have adequate staffing to provide, or arrange for, all Medicare-covered services.
• Audit and monitor the under-provision of necessary home health care, not just so-called “over-utilization” of care.
• Review and revise Medicare home health payment model (Patient Driven Grouping Model/ PDGM) and quality measure incentives, to encourage access to all necessary, statutorily authorized services, including home health aides.

4. Ensure Parity Between Traditional Medicare and Medicare Advantage and Promote Consumer Protections in Medicare Advantage

The Problem: The universal traditional Medicare program, preferred by most beneficiaries, has been neglected for years, while the private Medicare Advantage (MA) system has been repeatedly bolstered and promoted. This is leading to increased MA marketing and MA enrollment, even when it is not in the best interest of beneficiaries, Medicare, or taxpayers.

Administrative Action:

• Rebalance growing inequities between traditional Medicare and Medicare Advantage with regard to ease of enrollment, benefits, payments, and allocated resources.
• Address ongoing Medicare Advantage overpayments (and step up recoupment through Risk-Adjustment Data Validation program (RADV) audits).
• Enhance oversight and enforcement of MA plans (for example, regarding actual provision of coverage and care, and proper use of risk adjustments).
• Rescind recent updates to marketing and communications guidelines (MCMG) which, among other things, blurred distinctions between marketing and education.
• Eliminate bias towards Medicare Advantage plans in CMS materials, including outreach/enrollment materials, Medicare Plan Finder, Medicare & You, etc.

5. Actively Work to Enforce the Jimmo v. Sebelius Settlement – Require Fair Access to Coverage and Care for People with Chronic Conditions

The Problem: For too long, Medicare beneficiaries have been denied coverage and access to necessary care for which they qualify under the law, based on a long-standing myth that coverage is only available for people who will improve. In 2011 a nationwide class-action lawsuit was brought on behalf of beneficiaries with longer term, debilitating, and chronic conditions to challenge these illegal denials. (Jimmo v. Sebelius, (D. Vt., 2013; 2017)) The Jimmo case was settled with CMS in 2013. The Settlement Agreement confirmed that Medicare coverage is determined by a beneficiary’s need for skilled care, not on a beneficiary’s potential for improvement. Medicare coverage is available for skilled care to maintain or slow decline of an individual’s condition. Improvement is not required.  

Unfortunately, many beneficiaries are still denied Medicare and access to necessary skilled care based on some variation of an “Improvement Standard.” CMS is failing to ensure that the Jimmo Settlement Agreement is being properly implemented. The inadequate education of Medicare representatives, contractors, and providers about the Settlement results in continuing harm to Medicare beneficiaries in need of maintenance nursing and/or therapy services who are improperly denied access to appropriate Medicare coverage and care. Too often, when care is provided, the costs are inappropriately shifted to beneficiaries, families, and state Medicaid programs.

Administrative Action:

• Ensure CMS, its contractors, adjudicators, and providers are active partners in implementing the Jimmo Settlement.
• Require CMS to provide at least one training annually regarding the Jimmo Settlement for all contactors, adjudicators, and providers.
• Ensure Medicare providers know about the Jimmo Settlement, and provide appropriate access to coverage and care for people who need care to maintain their condition or slow decline, as authorized by law and confirmed by the court in Jimmo v. Sebelius.
• Monitor providers, contractors, and adjudicators at all levels of decision-making and appeals to ensure people who meet Jimmo criteria have appropriate access to coverage and care.
• Ensure CMS online and written materials and oral scripts recognize that Medicare can be available for necessary care to maintain an individual’s condition or slow decline, and that improvement is not a prerequisite to coverage.

6. Cover Medically Necessary Oral Health Care

The Problem: Oral health/dental care is increasingly recognized as key to overall health.  Unfortunately, CMS recognizes, but significantly limits, Medicare coverage for medically necessary oral health/dental services.  While the Medicare Act excludes coverage for “routine” dental services, the exclusion should not be broadly construed to preclude coverage for oral health procedures in all circumstances; this was not the legislative intent. Medicare coverage for medically necessary oral health care is supported by the Medicare statute, its legislative history, CMS policy, and precedent established by Medicare coverage for podiatry services. 

Administrative Action:

• Provide Medicare coverage for medically necessary oral health and dental services for conditions that pose a serious risk to a patient’s health or medical treatment. This includes instances where a physician has determined that a patient’s oral infection or disease will delay or prevent the receipt of, or otherwise complicate the outcome of, a Medicare-covered treatment for an underlying medical condition.
• Revise CMS policy to define coverage for medically necessary oral and dental therapies would not expand coverage beyond what the Medicare statute allows. To the contrary, it would uphold the general statutory exclusion of basic, routine dental care while fulfilling Congress’ goal of ensuring access to and coverage of medically necessary treatment for major health problems.

7. Additional Areas of Concern

• Improve Part D Coverage and Appeals
• Address Flaws in the Medicare Appeals System
• Improve Access to Durable Medical Equipment (DME) for Dually Eligible Individuals
• Rescind Final Rule Rolling Back Critical Non-Discrimination Provisions Pursuant to §1557 of the Affordable Care Act
• Rescind the Public Charge Rule Which Creates Almost Insurmountable Barriers to Entry into the United States for Older Immigrants
• Withdraw/Rescind the Proposed SUNSET Rule that would put an Automatic Expiration Date on Critical Medicare (and Other) Regulations
• Suspend the Direct Contracting Demonstration that Leaves Critical Consumer Protection Issues Unaddressed
• Hold More Frequent Meetings with Advocates

Although the Memorandum discussed above focuses on suggested Medicare changes that can be achieved immediately by the incoming Administration, the Center has also produced a “Medicare Platform: Principles to Improve Medicare for All Beneficiaries - Now and In the Future.” The Medicare Platform contains both administrative and legislative improvements. It includes overriding principles that address important enhancements to Medicare, additional recommendations, and context for the Center for Medicare Advocacy’s administrative recommendations. We must improve and simplify Medicare, not privatize or cut it. We can build it better; then expand access for generations to come.