September 2017 – Jimmo Implementation Update & Other Issues

Contents

  1. Jimmo Implementation Update
  2. Update on CMA Home Health Access Initiative
  3. The Federal Landscape
  4. Litigation Update

Jimmo Implementation Update

  1. Background – Jimmo Settlement

The settlement in Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) was approved on January 24, 2013.  CMS issued revisions to its Medicare Benefit Policy Manual to clarify that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS also implemented a nationwide Educational 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.

On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the settlement agreement. The filing came after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.

If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.” Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage.

The court announced its decision on the Motion for Resolution of Non-Compliance on August 18, 2016.  The Order required CMS to remedy the inadequate Educational Campaign that was a cornerstone of the original Settlement Agreement. As the judge stated, “Plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it.” The parties negotiated but could not come to agreement on what a Corrective Action Plan should entail.  The court then ordered each party to submit a brief explaining and justifying their proposed corrective action plans, as well as a response to the other party’s plan.

On February 2, 2017, the court released a decision ordering CMS to carry out a Corrective Action Plan to remedy noncompliance with the Settlement. The plan includes a new webpage by CMS dedicated to the Jimmo settlement with frequently asked questions and a statement (which the court largely adopted from plaintiffs’ suggested language) that affirmatively disavows the Improvement Standard; new training for Medicare contractors making coverage decisions; and a new National Call for Medicare contractors and adjudicators to correct erroneous statements that had been made on a previous call. On February 16, 2017, the court approved the final wording of the statement to be used by CMS to affirmatively disavow the use of an Improvement Standard.

  1. Corrective Action Plan Completed

In August 2017, as ordered by the federal judge in Jimmo v. Sebelius, the Centers for Medicare and Medicaid Services (CMS) published a new webpage containing important information about the Jimmo Settlement on its CMS.gov website. The Jimmo webpage is the final step in a court-ordered Corrective Action Plan which the government certified to the court was complete on August 31, 2017.

The Jimmo webpage and other elements of the Corrective Action Plan should help ensure that the Jimmo Settlement is implemented correctly and that it opens doors to Medicare coverage and necessary care for beneficiaries who require maintenance care, including people with long-term, progressive, or debilitating conditions. As required by the Court, CMS also provided additional training for Medicare decision-makers.

The new webpage contains an “Important Message About the Jimmo Settlement,” in which court-approved language emphasizes that the Settlement “may reflect a change in practice” for providers and Medicare decision-makers who erroneously believed that the Medicare program covers nursing and therapy services only when a beneficiary is expected to improve.  Indeed, the new education and Jimmo webpage are important because many health care providers still operate under this misconception, leading beneficiaries to be wrongly denied needed services such as physical and occupational therapy.

The Jimmo webpage also contains fifteen “Frequently Asked Questions,” which dispel mistaken beliefs among providers, Medicare contractors and others. For example, one of the answers clarifies that: “The Medicare program does not require a patient to decline before covering medically necessary skilled nursing or skilled therapy.” Another answer confirms: “Skilled services would be covered where such skilled services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.”

For more information, see:

Update on CMA Home Health Access Initiative

The Center continues to hear from people who meet Medicare coverage criteria for the Medicare home health benefit but who are unable to access care, or the appropriate amount of care.  After continuing to research and analyze the extent of the access problems, it is clear that the home health access issues most significantly impact the most vulnerable populations, those with long-term and chronic conditions.

  1. Proposed Rule

On July 28, 2017, CMS issued a proposed rule that, according to Modern Healthcare, would be “the largest overhaul of Medicare home health payment in many years, out of concern that the current reimbursement system discourages providers from serving patients with clinically complex or chronic conditions.”

Under the proposed model, payment would be adjusted based on, among other things, diagnostic severity, functional/cognitive level, comorbidities, and referral source.  Payment for patients coming from a hospital stay or other acute care episode would be higher than patients coming from the community.  Payments would also be based on 30-day, rather than the current 60-day, episodes of care.

As noted by Modern Healthcare, “Kathy Holt, associate director of the Center for Medicare Advocacy, argued that the new system would worsen existing access problems. ‘We hear all the time from people — including post-stroke patients, paralyzed veterans and people with diabetes, ALS, Parkinson’s and cystic fibrosis — that they can’t find any agencies that will serve them,’ she said.”

Comments to the proposed rule are due September 25, 2017.   The Center will circulate draft comments to partners prior to the deadline.

Note that the Center will be participating in the following webinar on September 12, 2017:

  1. Request for Stories About Access to Medicare Home Health Care:

The Center has created a repository for stories about home health care access barriers at http://www.medicareadvocacy.org/submit-your-home-health-access-story/. We seek experiences of people who have been unable to obtain services for which they are legally eligible. We would also like to hear from people who have been unable to remain at home and are forced to choose care in an institution because they cannot obtain adequate home care services. These stories continue to prove valuable with members of the administration, congress and the press to illustrate the injustice and hardship caused by lack of access to home care. We encourage you to direct people to the story repository link to share their experiences.

The Federal Landscape

  1. Congressional Agenda

As Congress returns from the August recess, members face a full agenda of issues they must tackle ranging from the federal budget, to defense spending, hurricane relief and immigration.  And just when we thought it was safe to move on – at least temporarily – from the health care reform date, efforts are underway to revive “repeal and replace.”

ACA Repeal

While some policymakers are seeking temporary, bipartisan fixes to shore up the Affordable Care Act (ACA), President Trump and certain policymakers continue to push for repeal of the ACA, this time through the Cassidy-Graham bill.  According to the Center on Budget and Policy Priorities, this bill “would cause many millions of people to lose coverage, radically restructure and deeply cut Medicaid, increase out-of-pocket costs for individual market consumers, and weaken or eliminate protections for people with pre-existing conditions.”

Other policy-makers are beginning to tout various efforts to increase coverage for all Americans. Many proposals involve looking to Medicare, increasing those who would be covered in the Medicare program, via a “buy-in” for younger people, and/or as an option for everyone. While the Center for Medicare Advocacy strongly supports the desire to enhance, not roll back coverage, we also know Medicare needs improving for current beneficiaries and those who might join in the future – as we wrote in an OpEd in The Hill.

Regardless of what Congress may do concerning health reform, as discussed below, the Department of Health & Human Services (DHHS) is already taking action to undermine the ACA.

Budget & Other Matters 

The White House and Congressional leaders have agreed to temporarily raise the nation’s debt limit and to continue to fund the government for 3 months (through early December 2017) through a continuing resolution (CR), avoiding a government shutdown fight – for now.

Looking longer term, there are plenty of health care related issues to monitor, including:

  • FY 2018 Federal Budget – among other cuts to programs that older adults and individuals with disabilities rely on, deep cuts have been proposed to the Medicaid program, and funding for State Health Insurance and Assistance Programs (SHIPs) is in danger;
  • CHIP Reauthorization and Extenders – the Children’s Health Insurance Program (CHIP), which provides coverage to almost 9 million children, expires soon; legislation to reauthorize this program will likely be a vehicle for passage of so-called Medicare “extenders” – elements of Medicare law that have traditionally been temporarily extended, including the therapy caps exceptions process and funding for community-based organizations to conduct outreach and enrollment of low-income Medicare beneficiaries; and
  • Tax Reform – a stated goal of the president and Congressional leadership, depending on how reform is structured, loss of federal revenue could put added pressure to cut spending on Social Security, Medicare and Medicaid.

Advocates must remain vigilant. The Administration and leaders in Congress have repeatedly made clear their goals of repealing the Affordable Care Act, gutting the Medicaid program by imposing block granting or per-capita caps, and further privatizing Medicare by turning it into a voucher program. These efforts comprise a collective threat to the health care and coverage of millions of Americans.

  1. HHS Actions – Continued Sabotage of the ACA

Separate from any congressional action on health care reform, the Trump administration has once again taken steps to sabotage the Affordable Care Act (ACA) by decimating the Department of Health and Human Services (HHS) outreach budget. First, the administration significantly shortened the enrollment period, and now the budget used for enrollment outreach is being slashed by 90%. Last year, the Obama administration had a budget of $100 million for outreach activities. Funding for this year’s outreach and enrollment efforts will only be $10 million.

Also facing huge cuts are community organizations that provide enrollment assistance to people who need health coverage. Funding for these organizations, called “navigators,” is being cut from last year’s $63 million to about $37 million for this year. The cuts are part of a consistent pattern by the administration to weaken the ACA and deny millions of people much needed health coverage.

In a recent statement, Senate Minority Leader Chuck Schumer said “The Trump administration is deliberately attempting to sabotage our health care system.” It is again time for us to make our voices heard and protect our care. Outreach and enrollment activities are absolutely critical to ensure individuals and families get the peace of mind that health coverage can bring. The administration must not continue to undermine the ACA and take steps that will depress enrollment for millions of Americans in need of health coverage.

Litigation Update

  • Alexander v. Price (formerly Bagnall v. Sebelius, Barrows v. Burwell)No. 3:11-cv-1703 (D. Conn.) (Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a proposed 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 Part A coverage of post-hospital nursing home care, people on observation status do not have access to 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.

On September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit.  Plaintiffs appealed, but limited the appeal to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status.  On January 22, 2015, the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification.  The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings.  Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).

The parties completed discovery on the issue ordered by the Second Circuit: whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, which depends on whether CMS has “meaningfully channeled” discretion on the question of patient status determinations.  If the Secretary has established criteria for inpatient hospitalization, plaintiffs have an interest that is protected by the Due Process Clause and thus they may be entitled to notice and opportunity to appeal their placement on observation. Plaintiffs received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. The law firm of Wilson Sonsini Goodrich & Rosati, which has helped the Center in previous litigation, joined as representatives of the plaintiffs during this phase and is continuing to provide invaluable pro bono assistance.

After briefing and a hearing on cross motions for summary judgment on the protected property interest issue and defendant’s supplemental motion to dismiss, the court issued a decision on February 8, 2017 denying both motions for summary judgment and largely denying the government’s motion to dismiss.  The court found that all named plaintiffs have standing and none of their claims was moot, even though some have passed away and some have resolved their underlying individual claims. It decided that factual disputes precluded summary judgment on the property interest question, though it did note that CMS considers the billing of hospitalizations as inpatient or observation to be a regulatory matter, under the authority of the Secretary, as opposed to a clinical decision. The court also found that while a treating physician’s status order plays a “role” in Medicare’s review of a hospital claim, it is not dispositive or even presumed to be correct.

As for the motion to dismiss, the court found that plaintiffs have plausibly alleged the other two aspects of a due process claim: state action (in the form of pressure on providers by CMS) and inadequacy of existing procedures (it is undisputed that there is currently no appeal method for patients placed on observation status). The court found that plaintiffs’ claim for expedited notice is now moot due to the new requirements being implemented under the NOTICE Act (“MOON” notice). The parties filed an updated plan for further discovery as plaintiffs continue to press their due process claim.

Plaintiffs filed a renewed motion for class certification on March 3, 2017. Oral argument was held and additional briefing was submitted.

Update: On July 31, 2017, the court issued a decision certifying a nationwide class of Medicare beneficiaries who have received “observation services” in a hospital since January 1, 2009, and have received an “initial determination” that such services were covered, or subject to coverage, under Medicare Part B.  Plaintiffs filed a motion for reconsideration on August 7, asking the court to clarify two aspects of the definition, namely, that the class should include patients who receive a MOON notice and should also include beneficiaries who do not have Part B.  No action is required of class members, but class counsel is advising people who think they are in the class to save any paperwork relating to their hospitalization and costs resulting from it. Plaintiffs will now proceed with discovery on their due process claim.

  • Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut. The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing. The parties also conducted discovery. In March 2016 the court preliminarily approved a settlement and notice to the class was posted.

A Fairness Hearing was held on August 1, 2016 and the Court granted final approval of the settlement agreement. The settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants, and to address any complaints or questions concerning the processing of those appeals. OMHA will also introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals.

On September 1, 2016 as part of the settlement, OMHA established a toll-free Beneficiary Help Line: (844) 419-3358.  This line, which is staffed by representatives of OMHA, will address inquiries about ALJ appeals being pursued by Medicare beneficiaries. The Center urges anyone pursuing a beneficiary appeal who believes the appeal is not receiving timely attention to call the Beneficiary Help Line. The expectation is that a call to this line will help resolve delays in cases that are eligible to be prioritized. The Beneficiary Help Line is staffed from 8:00 a.m. to 4:30 p.m., Eastern Time. If calling at other times or if the OMHA Beneficiary Help Line staff are assisting other callers, OMHA instructs callers to leave a voicemail. Please report your experiences using the Help Line to the Center at: abers@medicareadvocacy.org.

As of November 1, 2016 CMS updated scripts for 1-800-Medicare to highlight the OMHA beneficiary prioritization policy for beneficiary callers and to refer them to the toll-free OMHA Beneficiary Help Line if they have questions about filing appeals with OMHA or about ALJ appeals that are pending with OMHA. OMHA also posted the beneficiary appeals data required by the settlement on their website at http://www.hhs.gov/about/agencies/omha/about/current-workload/beneficiary-appeals-data/index.html. The data shows beneficiary appeals now being processed within or very close to the 90-day statutory time period.

In late January 2017 the Office of Medicare Hearings and Appeals issued a new ALJ request form, the OMHA-100, which is a unified request for hearing and review and can be used for all appeals to OMHA.  As part of the settlement, the form allows beneficiaries and enrollees to self-identify, making it easier for these claims to be classified as beneficiary appeals and given priority for processing. CMS has also issued instructions to appeal contractors that deal with reconsiderations (the level below ALJ hearings) the begin using revised appeal instructions that include plain-language instructions about OMHA’s beneficiary mail-stop as well as information on the beneficiary help-line that has been established at OMHA.  The OMHA-100 is available at: https://www.hhs.gov/sites/default/files/OMHA-100-Request-for-Hearing-or-Review-of-Dismissal.pdf.

  • Sherman v. Burwell (formerly Olsen-Ecker v. Burwell), No. 3:15-cv-1468 (D. Conn.) (Lower level Medicare appeals) On October 9, 2015, the Center filed a complaint in United States District Court in Connecticut against Sylvia Mathews Burwell, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Medicare beneficiaries seeking home health care coverage, and the named plaintiff represents beneficiaries who have received the usual “rubber stamp” denials at redetermination and reconsideration. The plaintiff also filed a motion for class certification, and the government filed a motion to dismiss. Written discovery was served but responses were stayed while the motion to dismiss was pending. Oral argument was held on February 29, 2016.

On August 8, 2016, the judge largely denied the government’s motion to dismiss and granted plaintiff’s motion for certification of a nationwide class. The court concluded that it had jurisdiction and decided that the case was not moot even though plaintiff’s claim had ultimately been approved. The judge dismissed the statutory claim, but found that plaintiff had stated a valid claim for relief under the Due Process Clause. He found plaintiff’s claim of policies or practices causing the denial rate sufficiently plausible to allow the case to continue to discovery. The judge also certified a nationwide class of Medicare beneficiaries of home health care services who had received adverse decisions at the first two levels of appeal on their Part A or Part B claims, and who had received an initial adverse initial determination on or after January 1, 2012.

Plaintiffs and the Secretary each served discovery and provided written responses and document production. Several depositions were held.

Update: The court has stayed discovery deadlines as the parties discuss settlement. A status report is due to the court by October 13, 2017.

  • Ryan v. Burwell, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015. Written discovery was served.

The government filed a motion for summary judgment in November 2016 and plaintiffs filed a cross motion and responded in December.  However the parties have now re-entered settlement talks and have postponed further briefing while those negotiations proceed.