CMA Alert – January 10, 2019

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  1. Improve and Expand Medicare: Ensure Medigap Access
  2. Objective Medicare Appeals Jeopardized By New ALJ Selection Process
  3. CMA Report: Nurse Staffing Deficiencies In Nursing Facilities
  4. Health Affairs Study Calls for Medicare Coverage of Hearing Care Services
  5. Senator Cardin Introduces Bill to Add Oral Health Coverage to Medicare

Improve and Expand Medicare: Ensure Medigap Access

Recently, the Center for Medicare Advocacy laid out our Medicare Platform for the New Congress. One of the core considerations to improve Medicare for all beneficiaries, now and in the future, is the need to preserve and expand consumer protections and quality coverage for all Medicare Beneficiaries – including parity between traditional Medicare and private Medicare plans. One of the key issues currently limiting choice and coverage for Medicare beneficiaries is limited access to Medigap plans.

Medicare Supplement Insurance, more commonly referred to as Medigap, is insurance that helps pay for “gaps” in Medicare payment. Medigap does not generally pay for gaps in services not covered by traditional Medicare, but rather for cost-sharing when coverage is provided by Medicare Parts A and B. Given the high costs of health care and Medicare cost-sharing, Medigap policies are key to affording care for people in traditional Medicare.

Unfortunately, however, there are limitations on accessing these important plans:

  • Federal law requires Medigap “guaranteed issue” protections for people age 65 and older only during the first six months of their Medicare Part B enrollment and certain other limited situations, including during a “trial” Medicare Advantage enrollment period. Beneficiaries who miss these windows of opportunity may not be able to purchase a Medigap policy later in life if their needs or priorities change.
  • Beneficiaries under age 65 with disabilities who qualify for Medicare have no guaranteed issue at all. (Individual states may offer varying degrees of consumer protection, but many do not).

Rights to purchase Medigap supplemental insurance policies should be expanded to people under 65 and should include ongoing access for all in order to provide real, meaningful choices for all Medicare beneficiaries.

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Objective Medicare Appeals Jeopardized By New ALJ Selection Process

On July 10, 2018, the President signed an Executive Order undermining the impartial hiring of Medicare Administrative law Judges (ALJs). The Order states that “conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ.”  What this means is that ALJs will now be hired directly by each individual agency, including the Department of Health and Human Services (which administers CMS) for Medicare appeals. This is a dramatic change from the current centralized system that selects applicants deemed qualified through a competitive examination and selection procedures administered by the Office of Personnel Management (OPM).

Advocates and legislators are concerned. When the change was announced, Rep. John Larson of Connecticut said that Americans “deserve an impartial hearing by a highly-qualified, independent judge. But under the Administration’s new policy, they will face a judge beholden to ideology and politics rather than one selected through a competitive process designed to ensure qualification and neutrality.”

By statute, Medicare ALJs must be independent of CMS. The Medicare Prescription Drug, Improvement and Modernization Act of 2003 ((MMA), Public Law 108-173, §931) transferred the function for Medicare ALJ appeals from the Social Security Administration to the Department of Health and Human Services. The law specifically states that ALJs are to be “organizationally and functionally independent of CMS.”[1] The Executive Order conflicts with this statutory requirement.  We fear that fairness and objectivity will be threatened, and the independence of ALJs appointed through this process will be in question.

The process for screening and putting forward applicants may, at first glance, look reasonable.  But we remain concerned since the ultimate selection will be made by HHS – the agency responsible for the policies under review at ALJ hearings.  This is a significant departure from the current centralized system that selects applicants deemed qualified through a competitive examination and selection procedures administered by OPM. 

The new selection process that ties ALJ appointments to HHS does not bode well for Medicare beneficiaries who seek a fair, independent review of Medicare coverage denials. The Center for Medicare Advocacy’s experience with thousands of Medicare appeals demonstrates that the lower levels of appeal have become all but rubber stamps of Medicare denials. The ALJ level of appeal is the only real chance for beneficiaries to obtain an independent review. The fairness and objectivity of the appeals process will be gravely damaged by granting HHS the final say in the selection process and selection of Medicare ALJs.

For more discussion on the importance ALJ Independence, see:


[1] (5 USC §554(d); 70 Fed Reg 11420-499 (March 8, 2005).

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CMA Report: Nurse Staffing Deficiencies In Nursing Facilities

The Nursing Home Reform Law (1987) established the federal standards for nurse staffing in nursing facilities: registered nurses eight consecutive hours per day; licensed nurses 24 hours per day; and “sufficient” nursing staff to meet residents’ needs.[1]

Most nursing facilities do not have sufficient numbers of nurses to provide the care that residents need.  The result is poor care outcomes for residents – avoidable pressure ulcers, medication errors, inappropriate use of psychotropic medications, failure to assist residents with activities of daily living, avoidable weight loss, falls, and more.  

In 2014, the Center for Medicare Advocacy looked at nurse staffing deficiencies that the Centers for Medicare & Medicaid Services (CMS) cited in the four-year period 2010-2013.  In an Alert entitled “Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned,” the Center reported that CMS cited few staffing deficiencies and that financial penalties for even the most serious deficiencies – those labeled “immediate jeopardy” – were infrequent.[2]

In December 2018, the Center again reviewed deficiencies cited by CMS for insufficient nurse staffing, this time, between November 28, 2017 (the effective date of the new, uniform federal survey process) and December 18, 2018.[3]  While CMS cited more staffing deficiencies than it did in the Center’s earlier review, it continued to classify most of them as “no-harm” and to impose few enforcement actions for those it labeled “actual harm” or “immediate jeopardy.”

The overwhelming majority of the 781 deficiencies (96.8%) were cited as “no harm,” a level of noncompliance that CMS generally does not sanction with financial penalties.

Staffing Deficiencies, Nov. 28, 2017-Dec. 18, 2018
Total: 781 Deficiencies

Level of staffing deficiency

Number of facilities cited with deficiency at this level

Percentage of total staffing deficiencies cited at this level

Immediate jeopardy

  17

    2.2%

Actual harm

    6

      .7%

No harm

756

  96.8%

Substantial compliance

    2

      .2%

CMS imposed few remedies on the 23 facilities whose staffing deficiencies it called jeopardy or actual harm.

  • CMS did not impose a civil money penalty (CMP) or denial of payment for new admissions (DPNA) on 10 of the 17 facilities that it cited with immediate jeopardy deficiencies.  CMS imposed DPNA only on one facility and CMPs on six facilities.  Only two facilities with an immediate jeopardy staffing deficiency had a CMP of more than $100,000.  (It is possible that CMS imposed CMPs against additional facilities.  However, if a facility appeals the CMP, CMS does not publicly post the CMP while the appeal is pending.)
  • CMS did not impose a CMP or DNPA on two of the six facilities that it cited with actual harm deficiencies.  It imposed DPNA-only on two facilities and CMPs-only on two other facilities.  The CMPs for the two facilities averaged $28,586.

The federal survey reports were similar to each other, whether the staffing deficiency was cited as immediate jeopardy or no-harm. Surveyors follow the federal survey protocol that directs them in how to identify and cite deficiencies. Nevertheless, and even though the Center reviewed only a small number of survey reports, what is most striking is how similar the evidence appears in the survey reports, regardless of the level of noncompliance identified. Surveyors describe the failures of care through multiple examples of: poor resident outcomes, resident complaints about insufficient staffing, staff admissions that the facility is not adequately staffed to meet residents’ needs, and documentation from facility records that the facility does not have enough staff (according to its own staffing standards). Surveyors appeared more likely to cite immediate jeopardy in staffing when they cited additional jeopardy-level deficiencies. In these cases, they included additional details and examples about the staffing deficiency. However, as a general matter, the evidence that surveyors cite appears to be the same, whether the deficiency is called jeopardy or no-harm.

For the Center’s full report, including descriptions of nurse staffing deficiencies at eight nursing facilities, and recommendations to strengthen the federal oversight system to protect residents, see: http://www.medicareadvocacy.org/report-nurse-staffing-deficiencies/.


[1] 42 U.S.C. §§1395i-3(b)(4)(C)(i), 1396r(b)(4)(C)(i)), Medicare and Medicaid, respectively.
[2] “Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned,” (CMA Alert, Mar. 7, 2014), http://www.medicareadvocacy.org/staffing-deficiencies-in-nursing-facilities-rarely-cited-seldom-sanctioned/
[3] For information on deficiencies between 2013 and 2017, see the Long Term Care Community Coalition’s reports of deficiencies cited between 2014 and 2017, by state, at https://nursinghome411.org/us-nursing-home-citations-2014-2017-november-2017/. Note: The Coalition’s state deficiency reports include all health deficiency citations. Insufficient staffing deficiencies are identified as F-353.

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Health Affairs Study Calls for Medicare Coverage of Hearing Care Services

The Medicare program has excluded coverage for hearing aids and related audiology services since its implementation in 1965, despite documented risks associated with untreated hearing loss and links to other chronic conditions. While the Over-the-Counter Hearing Aid Act of 2017 will soon allow access to hearing aids for mild-to-moderate hearing loss without the services of an audiologist or hearing aid dispenser, a recent Health Affairs study suggests that ongoing socio-economic barriers may limit the use of vital hearing care services, such as fittings and counseling.

In “Access to Hearing Care Services Among Older Medicare Beneficiaries Using Hearing Aids,” the study’s authors find that older adults dually eligible for both Medicare and Medicaid had “41 percent lower odds of using hearing care services and were twice as likely to report having a lot of trouble hearing with their aids, compared to high-income Medicare beneficiaries.” Because of such findings, the authors note that beneficiaries with lower incomes may forgo hearing care services that traditionally come with the purchase of hearing aids and “will be more likely to experience continued difficulty with hearing loss.”

The study proposes two policy solutions to address the barrier to hearing care services. First, hearing care services could be included in the “mandatory benefits provided by state Medicaid programs.” Second, Congress could remove the Medicare coverage exclusion. The study advocates that the latter change is the most appropriate option because “barriers to hearing care services and poor hearing outcomes are not limited to people dually eligible for Medicaid…”

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Senator Cardin Introduces Bill to Add Oral Health Coverage to Medicare

One of the Center for Medicare Advocacy’s top priorities is to expand Medicare coverage to include oral and dental care for all beneficiaries.  We have also long advocated for coverage of medically necessary oral health care, which is currently supported by the Medicare statue but is significantly limited in practice due to Medicare policy.

In the opening days of the new Congress, Senator Ben Cardin (Maryland) introduced the Medicare Dental Benefit Act of 2019 (S. 22).  According to a January 4, 2019 press release issued by the senator’s office, the proposed bill “would repeal the statutory exclusion on Medicare coverage of dental care and dentures” in the Medicare statute, and would expand “Part B benefits to cover dental and oral health services, including routine cleanings and exams, fillings and crowns, major services such as root canals and extractions, emergency dental care, and other necessary services.”   

The Center joined Families USA, Justice in Aging, and Oral Health America in offering support for this legislation.

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