Opinion writers weigh in on these public health issues and others.
Can’t see the audio player? Click here to listen on SoundCloud.
Before “Medicare for All,” there was just Medicare, the very popular program that serves 60 million Americans age 65 and older or younger people with certain disabilities.
But while Medicare is much loved by most of those it serves, it is anything but simple.
This week KHN’s “What the Health?” podcast takes a deep dive into Medicare. First, host Julie Rovner talks with Tricia Neuman, a senior vice president in charge of Medicare Policy at the Kaiser Family Foundation. (KHN is an editorially independent program of the foundation.)
Then, panelists Paige Winfield Cunningham of The Washington Post, Joanne Kenen of Politico and Kimberly Leonard of the Washington Examiner join Rovner for a discussion of some of the Medicare issues on the front burner in Washington in 2019.
Among the takeaways from this week’s podcast:
- You can’t understand Medicare without getting a handle on its alphabet, from A to D.
- Medicare also has a robust role for private insurance. About one-third of beneficiaries opt to join private insurance plans that contract with the federal government to provide an alternative to the traditional, fee-for-service government program. And that business is highly profitable for private insurance.
- As Americans age, many fondly look forward to Medicare, imagining it will pay all their health bills. But the program has hefty cost-sharing requirements and doesn’t cover many expenses, including long-term nursing home care, dental care and most vision care.
- Federal officials are eager to find ways to cut Medicare’s drug costs. But that raises many questions, such as whether Medicare should negotiate with drugmakers over prices or set up its own formulary of drugs it would cover.
- An even harder question is how Medicare can work to control costs for the pricey drugs administered in doctors’ offices. Strong congressional lobbying from doctors and drugmakers has derailed efforts to do so in the past.
- A vexing issue for some seniors is getting observation care at the hospital when they are not sick enough to be admitted but are too sick to go home. Patients receiving observation care likely face bigger cost sharing than if they were admitted and Medicare won’t pay for any nursing home care.
To hear all our podcasts, click here.
Opinion writers weigh in on these health topics and others.
Home dialysis for older adults will become more common in the years ahead, experts predict — but not without overcoming significant challenges.
By 2025, the Trump administration wants 80% of people newly diagnosed with kidney failure to receive home dialysis or kidney transplants, according to an executive order issued in July. Currently, more than 85% of such patients are treated at dialysis centers.
In a notable move, retail health giant CVS Health has said it will enter the dialysis business, while the companies that dominate this market — Fresenius Medical Care and DaVita — have confirmed plans to expand their home dialysis offerings.
“We think there’s definitely an opportunity to get more of our patients home,” said Dr. Dinesh Chatoth, associate chief medical officer at Fresenius, which this year bought NxStage Medical, a leading provider of home dialysis technology. (About 12% of Fresenius’ 208,000 U.S. dialysis patients are on home therapies.)
“I think it’s realistic to expect 40% to 50% of patients to be able to do home dialysis,” said Dr. Martin Schreiber, chief medical officer for DaVita home modalities. (About 13% of DaVita’s 203,000 U.S. dialysis patients now receive home therapies.)
Other experts think that’s optimistic. “I think 25% to 30% of patients is more realistic,” said Dr. Thomas Golper, a professor of medicine at Vanderbilt University, whose home dialysis program is among the largest in country.
Home dialysis has several advantages over dialysis in treatment centers: Patients can get therapy more frequently, which puts less stress on their bodies; it’s more convenient; it’s less expensive; and patients’ quality of life is generally better, according to numerous studies. On the downside, doing this therapy at home can be isolating, fraught with anxiety, technologically challenging and burdensome for patients and caregivers.
What changes are needed to bring home dialysis to more patients — especially older adults, the fastest-growing group of patients with serious, irreversible kidney disease? We asked nephrologists, patient advocates and dialysis company officials for their thoughts.
Better patient education. Medicare pays for “pre-dialysis education” that informs patients about treatment options before their kidneys fail. Yet, fewer than 2% of Medicare members with advanced kidney disease receive this benefit, according to a U.S. Government Accountability Office report.
“We need to improve the education of patients regarding their [dialysis] modality choices,” said Schreiber of DaVita. Patients who attend that company’s Kidney Smart education classes are six times more likely to select home dialysis as a treatment option, according to materials supplied by DaVita.
Ongoing education about how to handle issues that arise during home dialysis is also needed. In a recent survey of caregivers providing complex care at home, 60% of caregivers assisting with home dialysis said they needed “more/better instruction” while 18% called for “more help from others.”
“Right now, patients are educated on the mechanics of the treatment,” said Nieltje Gedney, treasurer of Home Dialyzors United, a patient group that has been testing an education curriculum. “But in order to be successful at home, patients also have to learn much more about how to manage their treatment.”
More personal assistance. In Canada, Australia and other countries where home dialysis is much more common than in the U.S., patients can get assistance from health workers who help them set up for a dialysis treatment and wind things down when treatment is over. On each end, tasks required can take half an hour or longer.
Medicare doesn’t pay for this kind of assistance, but it should — especially for older adults, several experts suggest.
“Imagine trying to move someone 75 or older who’s socioeconomically disadvantaged onto home dialysis,” said Dr. Holly Mattix-Kramer, president of the National Kidney Foundation and a professor of medicine at Loyola University Medical Center in Chicago. “Maybe they feel insecure and kind of afraid. Maybe they need some extra time going over skills. Maybe they need some extra support the first few months before they feel comfortable with the routine.”
Home health aides or community health workers could provide help of this kind. Dori Schatell, executive director of the Medical Education Institute, which specializes in serving people with kidney disease, called for a demonstration project of paid home dialysis helpers.
“Assisted dialysis in the home would have tremendous advantages, I believe, especially for the elderly,” Schreiber said, and DaVita has been talking to the Centers for Medicare & Medicaid Services about how this might work.
New technologies. In the next several years, Chatoth of Fresenius envisions that new technologies will allow people on home dialysis to be monitored much more closely, day by day. Two-way portals would allow data to flow back and forth between patients and clinicians. Telehealth would allow physicians, nurses, social workers and dietitians to interact with patients remotely and provide more ongoing support.
This kind of connectivity is especially important for older adults with multiple medical conditions who need extra oversight and may have difficulty traveling to a dialysis center.
Fresenius is doing a telehealth pilot, and “we think by the end of the year we should have this rolled out across most of our [home dialysis] programs,” Chatoth said.
Dr. Eric Wallace, an associate professor of nephrology at the University of Alabama at Birmingham and a pioneer in the use of telehealth for home dialysis, thinks telehealth has considerable potential but voiced concerns.
For instance, poor patients and patients in rural areas often don’t have enough internet bandwidth to support videoconferencing. While physicians rely on laboratory tests to evaluate dialysis patients, “there aren’t mechanisms in place to do labs inside a patient’s home,” Wallace said. And some older patients may become even more isolated without regular face-to-face visits to medical providers.
“Telehealth is going to open up new ways to connect with patients,” he said. “But I don’t think it’s quite as easy as people want to make it sound.”
Also, several companies are developing technologies that could make home dialysis safer and easier, including NxStage, CVS, Outset Medical of San Jose, Calif., Quanta Dialysis Technologies of the United Kingdom, and Physidia, out of France.
“They each have their own specific angle, but the general theme with all of them is the ‘Apple-fication’ of dialysis machines,” said Dr. Frank Liu, director of home hemodialysis at the Rogosin Institute in New York City.
Altering physician practices. A precondition for change is educating physicians about home dialysis and persuading them to offer it to more patients, experts suggest.
Only one-third of patients who need to start dialysis are told peritoneal dialysis at home is an option, while only 12% are offered home hemodialysis, research has shown.
Dr. Matthew Rivara, a nephrologist and investigator at the University of Washington Kidney Research Institute, faults “inadequate training in home dialysis” in nephrology fellowship programs, as do several other leading nephrologists.
“There’s almost nothing on board examinations that tests physicians’ knowledge about home dialysis; nephrologists can pass with flying colors and know very little about these therapies,” said Golper of Vanderbilt who’s helped launch a training program for physicians, Home Dialysis University.
Easing transitions. When patients learn they have potentially fatal kidney disease, “you’re literally blinded with fear. There’s no way you can think about your options until you get past that,” said Gedney of Shepherdstown, W.Va., who has relied on home hemodialysis since 2014.
Transitional programs that help people adjust to the need for dialysis and understand what it entails should become more widely available, she said.
Fresenius has nearly 40 programs of this kind across the U.S., and more are starting up. Over four to six weeks, people start receiving dialysis at a center and learn about specifics such as what they can eat, who’s going to pay for dialysis, how their lives might change and how much support they’ll need.
The goal is to help patients “cope with the diagnosis,” Chatoth said. After going through transitional programs, he added, more than half of patients choose home dialysis.
Opinion writers weigh in on these and other health issues.
Kaiser Health News reporter Emmarie Huetteman joined Connecticut Public Radio’s Lucy Nalpathanchil on the “Where We Live” program Tuesday to talk about Democratic presidential candidates’ health care plans.
She discussed how the current Medicare program works and how some candidates, including Sens. Bernie Sanders of Vermont and Kamala Harris of California, have offered plans that would build a national health care program using Medicare as a guide. And she contrasted that with the plan pitched by former Vice President Joe Biden that would include a health plan offered by the government that consumers could opt into. She also took questions from listeners.
The program is available here.
CMS said it plans to use the feedback from the public input request to guide its proposed changes to the star ratings. The methodology currently used has garnered many complaints in the past.
Can’t see the audio player? Click here to listen on SoundCloud.
This week, KHN’s “What the Health?” panelists answered questions submitted by listeners.
Among the topics covered were drug prices, how other countries provide and pay for health insurance and whether Congress might repeal the “Cadillac tax” on generous health plans.
This week’s panelists are Julie Rovner of Kaiser Health News, Anna Edney of Bloomberg News, Alice Miranda Ollstein of Politico and Caitlin Owens of Axios.
Among questions the panel addressed:
- Why [does] the health care debate in the U.S. seem to be focused on “Medicare for All” or strengthening the ACA, but no one is suggesting a universal multipayer system with price controls, as in France or Germany?
- Can you please explain the policies that prevent the majority of Medicare patients from using third-party and manufacturers’ coupons for medications?
- I know that you all talked about the update on the Cadillac tax, but I was wondering, what are the reasons why there is bipartisan support to repeal it?
Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:
Julie Rovner: The Washington Post’s “Illness Is One of Many New Factors to Count Against Immigrants Seeking U.S. Residency,” by Paige Winfield Cunningham
Anna Edney: Bloomberg News’ “Trump’s Canada Drug Import Plan Can’t Happen Without Big Pharma,” by Natalie Obiko Pearson and Simran Jagdev
Alice Miranda Ollstein: The Appeal’s “Ohio Governor Wants to Detain Fewer Mentally Ill People Before Trial,” by Kira Lerner
Caitlin Owens: JAMA Internal Medicine’s “Assessment of Out-of-Network Billing for Privately Insured Patients Receiving Care in In-Network Hospitals,” by Eric Sun, Michelle Mello and Jasmin Moshfegh
To hear all our podcasts, click here.
Editorial pages focus on a range of health care topics.
Public opinion polls show strong support for efforts to expand health coverage to more Americans.
But the list of proposals is long and the phrases used to describe them are often sloppy sloganeering.
Let us help you cut through the confusion.
Universal coverage means everyone has health insurance. Universal coverage can be provided by the government or a private company or some combination.
In a single-payer system, the government pays all medical bills and sets prices for medical procedures. Canada has a single-payer system.
Single-payer is not the same as socialized medicine, where the government owns the hospitals and clinics and employs the staffs. Great Britain’s National Health Service is an almost fully socialized health system.
A public option is a plan sponsored by the government that individuals may purchase. Private insurance plans would remain and the public option plan would compete with them for customers.
Medicare is the government program that insures 60 million people, most age 65 and older. It’s very popular.
Medicare, however, does not have very generous benefits compared with most private insurance plans. For example, you need separate insurance for prescription drugs and there is no limit on out-of-pocket costs.
Backers of “Medicare for All” proposals want to expand current Medicare to the entire population and enhance the benefits, too.
Medicare for All plans would minimize the current role of private insurance plans and some would eliminate them entirely.
Some people would like to expand Medicare gradually. This is sometimes called “Medicare for More.” It might simply lower the eligibility age to 55 or 50. Or it could begin by adding children and gradually move the eligibility age up until everyone is covered.
Another variation would keep the current Medicare coverage but let people who are not now eligible purchase it. These Medicare buy-in proposals might allow people ages 50 to 64 to opt in. Or Medicare might be available for purchase to those who don’t get insurance at their job.
All these plans will cost the government — that is, taxpayers — more. How much more, well, that’s a whole ‘nother can of worms.
When Santa Barbara lawyer-turned-activist Ady Barkan settled in to watch the second round of the Democratic presidential primary debates late last month, he had no idea his story would be part of the heated discussion.
Barkan, 35, who has amyotrophic lateral sclerosis, also known as ALS or Lou Gehrig’s disease, watched from his wheelchair as Massachusetts Sen. Elizabeth Warren described how he and his family had to raise money online to help pay for roughly $9,000 a month in health care costs not covered by his private health insurance.
— Ady Barkan🔥🌹 (@AdyBarkan) July 31, 2019
“The basic profit model of an insurance company is taking as much money as you can in premiums and pay out as little as possible in health care coverage,” Warren said. “That is not working for Americans.”
But for Barkan, the moment was not about him.
“Elizabeth Warren’s point wasn’t just to mention my name, it was to call attention to the ways our broken health care system is hurting people across the country,” he said in an email interview.
Proponents of “Medicare for All” argue that a single, publicly funded insurance plan is the most effective and equitable way to deliver health care to all Americans. The concept, and whether it is politically feasible, is a dividing line among Democratic presidential candidates.
Barkan, a community organizer for the progressive advocacy group Center for Popular Democracy, was diagnosed with the neurodegenerative disease in 2016 at age 32. ALS causes muscles to atrophy, and patients to lose control of their bodies. Eventually, they are no longer able to breathe without assistance from a ventilator.
Barkan had already made a splash on the national political stage a few years earlier because of his campaign to persuade the Federal Reserve to focus on full employment and rising wages.
He and his wife, Rachael Scarborough King, a University of California-Santa Barbara English associate professor, had welcomed their first child earlier that year. As he put it, “life was perfect.” But the diagnosis plunged him into depression as he realized he would likely not live long enough to see his son grow up. People with ALS live an average of two to five years after diagnosis.
His fight for better access to health care began in 2017, when he protested the GOP tax cut bill on the grounds that removing that revenue from the federal government would make it more difficult to fund disability and Medicaid payments.
On the way home from the protest, he ended up on the same flight with former Arizona Sen. Jeff Flake, a Republican, and used the opportunity to have a gentle but pointed conversation about how the bill would devastate families like his. The exchange, captured on video, went viral and landed him more opportunities to share his story. By then, he needed a cane to walk and could no longer hold his baby.
Barkan’s delivery at the hearing was stirring, even to some advocates who oppose his aims. Although Grace-Marie Turner, president of the Galen Institute, a public policy think tank that opposes increased government involvement in health care, testified at the same hearing against Medicare for All, she said she came away with great respect for Barkan.
“It is tragic that Ady is afflicted with ALS,” she said. “His ceaseless dedication to his cause and to his family, despite this devastating illness, shows true heroism.”
Barkan now requires round-the-clock home health aides, who account for the $9,000 out-of-pocket cost that Warren mentioned in the debate.
He spoke with California Healthline’s Anna Almendrala about the case for Medicare for All. He responded to email questions with a device that uses lasers to track his eye movements in order to type.
The following interview has been edited for length and clarity.
Q: Why do you think that Medicare for All, which was once considered fringe, is now a major part of the debate among Democratic nominees?
We’re the richest nation in the history of the world, and yet people are going bankrupt from their medical bills. Clearly, people’s frustration with the health care system is reaching a boiling point. Tens of millions of people don’t have any health insurance. Millions more have to fight with their insurance company every day, when those companies try to deny coverage for necessary care.
Q: What did you think about the debate, especially the portion in which candidates were asked about raising taxes on the middle class to pay for Medicare for All?
When I saw the moderate candidates argue that Medicare for All will never pass because Republicans are going to call us socialists, or attack us for raising taxes, that makes me sad. It’s an argument that doesn’t give voters enough credit. Yes, Medicare for All will probably mean a new tax, but that tax will be less, way less, than how much we’re spending on health care bills. Let’s make that argument and treat voters like adults.
Q: What do you think about California Sen. Kamala Harris’ health care plan, which would allow more people to opt into Medicare while also giving private insurers the chance to participate?
It raises a lot of questions for me, like why there’s such a long phase-in to cover everybody, and why Sen. Harris seems insistent on preserving a role for the private insurance industry. One thing I think candidates haven’t had to do so far is make a case for why private insurance companies are good, how they actually make life better for doctors or patients.
Q: While Medicare for All is becoming a more mainstream idea, politically it remains a long shot, even in a state like California. In its absence, what other options would you support?
There are various incremental reforms that would still be important improvements over the status quo. And I am not sure that incremental reforms will be more politically viable than Medicare for All.
The insurance industry will oppose a public option just like they’ll oppose single-payer. So, I guess I don’t really accept the premise of the question. But, putting that aside, I support any solution that gets more people the health care they deserve.
Q: How are Rachael and your son, Carl?
Rachael is enjoying teaching and looking forward to having time off when the new baby comes in November. That’s some news for your readers — she’s pregnant with our second!
Q: How are you doing physically, emotionally and mentally?
ALS is exhausting, infuriating and inserts itself into every moment of my life. I recently lost the ability to drive my wheelchair, so other people have to do it for me. But there are always glimmers of hope.
Very soon I will have access to eye-drive technology, which will allow me to drive my wheelchair with my eyes using my computer.
Q: What does it feel like to see yourself, struggling with a debilitating disease, as one of the most prominent faces of the Medicare for All movement?
I am glad to be able to use my personal tragedy to support transformative change, although I would obviously give up all the attention and accolades in a heartbeat if I could be healthy. I’d much prefer to make impact the way I was before my diagnosis.
Five years after Congress passed a law to reduce unnecessary MRIs, CT scans and other expensive diagnostic imaging tests that could harm patients and waste money, federal officials have yet to implement it.
The law requires that doctors consult clinical guidelines set by the medical industry before Medicare will pay for many common exams for enrollees. Health care providers who go way beyond clinical guidelines in ordering these scans (the 5% who order the most tests that are inappropriate) will, under the law, be required after that to get prior approval from Medicare for their diagnostic imaging.
But after physicians argued the provision would interfere with their practices, the Trump administration delayed putting the 2014 law in place until January 2020, two years later than originally planned.
Even then, the Centers for Medicare & Medicaid Services (CMS) slated next year as a “testing” period, which means even if physicians don’t check the guidelines, Medicare will still pay for an exam. CMS also said it won’t decide until 2022 or 2023 when physician penalties will begin.
Critics worry the delays come at a steep cost: Medicare paying for millions of unnecessary exams and patients subject to radiation for no medical benefit.
A Harvard study published in 2011 in the Journal of Urology found “widespread overuse” of imaging tests for men on Medicare who were at low risk for prostate cancer. And a University of Washington study in the Journal of the American College of Radiology that reviewed 459 CT and MRI exams at a large academic medical center found 26% of the tests were inappropriate.
“These delays mean that many more inappropriate imaging procedures will be performed, wasting financial resources and subjecting patients to services they do not need,” said Gary Young, director of the Northeastern University Center for Health Policy and Healthcare Research in Boston. “If this program were implemented stringently, you would certainly reduce inappropriate imaging to some degree.”
Doctors order unnecessary tests for a variety of reasons: to seize a potential financial advantage for them or their health system, to ease fears of malpractice suits or to appease patients who insist on them.
The law applies to doctors treating patients enrolled in the traditional fee-for-service Medicare system. Health insurers, including those that operate the private Medicare Advantage plans, have for many years refused to pay for the exams unless doctors get authorization from them beforehand. That process can take days or weeks, which irks physicians and patients.
CMS Administrator Seema Verma has sought to reduce administrative burdens on doctors with her “patients over paperwork” initiative.
CMS would not make Verma or other officials available and answered questions only by email.
A spokeswoman said CMS has no idea how many unnecessary imaging tests are ordered for Medicare beneficiaries.
“CMS expects to learn more about the prevalence of imaging orders identified as ‘not appropriate’ under this program when we begin to identify outlier ordering professionals,” she said.
‘It Takes Four Clicks On A Computer’
An influential congressional advisory board in 2011 cited the rapid growth of MRIs, CT scans and other imaging and recommended requiring doctors who order more tests than their peers to be forced to get authorization from Medicare before sending patients for such exams. In the 2014 law, Congress tried to soften the effect by asking doctors billing Medicare to follow protocols to confirm that imaging would be appropriate for the patient.
A growing number of health systems have used clinical guidelines to better manage imaging services, studies show. The University of Virginia Health System found that unnecessary testing fell by between 5% and 11% after implementing such recommendations.
Virginia Mason Health System in Seattle in 2011 set up a system requiring its physicians — most of whom are on salary — to consult imaging guidelines. It would deny claims for any tests that did not meet appropriate criteria, except in rare circumstances. A study found the intervention led to a 23% drop in MRIs for lower back issues and headaches.
Dr. Craig Blackmore, a radiologist at Virginia Mason, said he worries that, unlike the efforts at his hospital, many doctors could be confused by the Medicare program because they have not received the proper training about the guidelines.
“My fear is that it will be a huge disruption in workflow and show no benefit,” he said.
In 2014, AtlantiCare, a large New Jersey hospital system, began grading physicians on whether they consult its guidelines.
“Some doctors see this tool as additional work, but it takes four clicks on a computer or less than a minute,” said Ernesto Cerdena, director of radiology services at AtlantiCare.
Not all Medicare imaging tests will be subject to the requirements. Emergency patients are exempt, as well as patients admitted to hospitals. CMS has identified some of the most common conditions for which doctors will have to consult guidelines. Those include heart disease, headache and pain in the lower back, neck or shoulders.
Robert Tennant, director of health information technology for the Medical Group Management Association, which represents large physician groups, said the law will unfairly affect all doctors merely to identify the few who order inappropriately.
“For the most part, doctors are well trained and know exactly what tests to perform,” Tennant said.
The association is one of several medical groups pushing Congress to repeal the provision.
American College Of Radiology’s Role
The law required the federal government to designate health societies or health systems to develop guidelines and companies that would sell software to embed that information into doctors’ electronic health record systems.
Among the leaders in that effort is the American College of Radiology, which lobbied for the 2014 law and has been issuing imaging guidelines since the 1990s. It is one of about 20 medical organizations and health systems certified by CMS to publish separate guidelines for doctors.
The college wanted “to get ahead of the train and come up with a policy that was preferable to prior authorization,” said Cynthia Moran, an executive vice president of the radiology group. About 2,000 hospitals use the college’s licensed guidelines, more than any others, she said. And the college profits from that.
Moran said the licensing money helps the college defer the costs of developing the guidelines, which must be updated regularly based on new research. She said the college gives away the guidelines to individual doctors upon request and sells them only to large institutions, although she notes they are not as easy to access that way compared with being embedded in a doctor’s medical records.
Medicare paid for Betty Gordon’s knee replacement surgery in March, but the 72-year-old former high school teacher needed a nursing home stay and care at home to recover.
Yet Medicare wouldn’t pay for that. So Gordon is stuck with a $7,000 bill she can’t afford — and, as if that were not bad enough, she can’t appeal.
The reasons Medicare won’t pay have frustrated the Rhode Island woman and many others trapped in the maze of regulations surrounding something called “observation care.”
Patients, like Gordon, receive observation care in the hospital when their doctors think they are too sick to go home but not sick enough to be admitted. They stay overnight or longer, usually in regular hospital rooms, getting some of the same services and treatment (often for the same problems) as an admitted patient — intravenous fluids, medications and other treatment, diagnostic tests and round-the-clock care they can get only in a hospital.
But observation care is considered an outpatient service under Medicare rules, like a doctor’s appointment or a lab test. Observation patients may have to pay a larger share of the hospital bill than if they were officially admitted to the hospital. Plus, they have to pick up the tab for any nursing home care.
Medicare’s nursing home benefit is available only to those admitted to the hospital for three consecutive days. Gordon spent three days in the hospital after her surgery, but because she was getting observation care, that time didn’t count.
There’s another twist: Patients might want to file an appeal, as they can with many other Medicare decisions. But that is not allowed if the dispute involves observation care.
Monday, a trial begins in federal court in Hartford, Conn., where patients who were denied Medicare’s nursing home benefit are hoping to force the government to eliminate that exception. A victory would clear the way for appeals from hundreds of thousands of people.
The class-action lawsuit was filed in 2011 by seven Medicare observation patients and their families against the Department of Health and Human Services. Seven more plaintiffs later joined the case.
“This is about whether the government can take away health care coverage you may be entitled to and leave you no opportunity to fight for it,” said Alice Bers, litigation director at the Center for Medicare Advocacy, one of the groups representing the plaintiffs.
If they win, people with traditional Medicare who received observation care services for three days or longer since Jan. 1, 2009, could file appeals seeking reimbursement for bills Medicare would have paid had they been admitted to the hospital. More than 1.3 million observation claims meet these criteria for the 10-year period through 2017, according to the most recently available government data.
Gordon is not a plaintiff in the case, but she said the rules forced her to borrow money to pay for the care. “It doesn’t seem fair that after paying for Medicare all these years, you’re told you’re not going to be covered now for nursing home care,” Gordon said.
No one has explained to Gordon, who has hypoglycemia and an immune disease, why she wasn’t admitted. The federal notice hospitals are required to give Medicare observation patients didn’t provide answers.
Even Seema Verma, the head of the Centers for Medicare & Medicaid Services, is puzzled by the policy. “Better be admitted for at least 3 days in the hospital first if you want the nursing home paid for,” she said in a tweet Aug. 4. “Govt doesn’t always make sense. We’re listening to feedback.” Her office declined to provide further explanation.
Patients and their families can try to persuade the physician or hospital administrators to change their status, and sometimes that strategy works. If not, they can leave the hospital to avoid the extra expenses, even if doing so is against medical advice.
The requirement of three consecutive days as a hospital inpatient to qualify for nursing home coverage is written into the Medicare law. But there are exemptions. Medicare officials don’t apply it to beneficiaries in some pilot programs and allow private Medicare Advantage insurers to waive it for their patients.
Concerned about the growing number of people affected by observation care, Medicare officials created a “two-midnight” rule in 2013. If a doctor expects a patient will be sick enough to stay in the hospital through two midnights, then it says the patient should generally be admitted as an inpatient.
Yet observation claims have increased by about 70% since 2008, to more than 2 million in 2017. Claims for observation care patients who stay in the hospital for longer than 48 hours — who likely would qualify for nursing home coverage had they been admitted —rose by nearly 159%, according to data Kaiser Health News obtained from CMS. Yet the overall growth in traditional Medicare enrollment was just under 9%.
Justice Department lawyers handling the case declined to be interviewed, but in court filings they argue that the lawsuit accuses the wrong culprit.
The government can’t be blamed, the lawyers said, because the “two-midnight” rule gives hospitals and doctors — not the government — the final word on whether a patient should be admitted.
The government’s lawyers argue that since Medicare “has not established any fixed or objective criteria for inpatient admission,” any decision to admit a patient is not “fairly traceable” to the government.
Like Gordon, some doctors also complain about observation care rules. An American Medical Association spokesman, who spoke on condition of not being named, said the “two-midnight” policy “is challenging and illogical” and should be rescinded. “CMS should instead rely on physicians’ clinical judgment to determine a patient’s inpatient or outpatient status,” he added.
HHS’ Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It’s No. 1 on a list issued last month of the 25 most important inspector general’s recommendations the agency has failed to implement.
The Medicare Payment Advisory Commission, which counsels Congress, has made a similar suggestion.
However, Colin Milligan, a spokesman for the American Hospital Association, is more positive about the “two-midnight” rule. It “recognizes the important role of physician judgment,” he said.
Medicare isn’t dictating what physicians must do, said a physician who has researched the effects of observation care. “It’s a benchmark upon which to base your decisions, not a standard or a mandate,” said Dr. Michael Ross, a professor of emergency medicine at Emory University School of Medicine in Atlanta. He supervises observation care units at Emory’s five hospitals and was chairman of a CMS advisory subcommittee on observation care.
Other physicians claim that since HHS pays hospitals and doctors to treat Medicare patients, the agency’s policies weigh on their decisions.
“One of the hardest things to do is to get physicians to predict what will happen with patients — we like to hedge our bets and account for all possibilities,” said Dr. Tipu Puri, a physician adviser and medical director at the University of Chicago’s medical center. “But we’re being forced to interpret the rules and read between the lines.”
In the meantime, observation care patients who get follow-up care at a nursing home may soon receive a puzzling notice. A Medicare fact sheet issued last month “strongly encourages” nursing home operators to give an “advance beneficiary notice of non-coverage” to patients who arrive without the required prior three-day hospital admission.
But that notice says they can choose to seek reimbursement by submitting an appeal to Medicare — an option government lawyers will argue in court is impossible.