The President’s Medicare Executive Order Expands Towards Private Medicare Advantage Over Traditional Medicare

On October 3, 2019 the Trump Administration issued an Executive Order (EO) entitled “Protecting and Improving Medicare for Our Nation’s Seniors.” Since the President’s speech announcing the EO lacked policy specifics, we looked to the administration’s telephone press conference to discern the intentions behind the EO. As expressed by Administration officials on the call, the EO is continuing to promote private Medicare Advantage insurance plans over traditional Medicare. This is part of an ongoing drive to privatize the Medicare program.

In outlining some of the provisions of the EO during the press call, Secretary of Health and Human Services Azar stated a goal is to “ensure that, as much as we can, our Fee-for-Service Medicare program is not advantaged or promoted over Medicare Advantage with respect to its administration.”  Referring to the traditional Medicare program as “fee-for-service,” Secretary Azar responded:  “So the executive order commissions us to examine all practices, regulations, guidance to just make sure that we’re not steering people into Fee-for-Service, as opposed to giving them a genuine choice of Medicare Advantage or Fee-for-Service.”  [Emphasis added].

He continued:  “So we’ll be looking at all of those issues: how does the enrollment process work when new people come in; how the annual enrollment process work; are we providing adequate information through the various plan-finder tools to ensure people can make informed choices, make sure there’s no financial disincentive to being in MA versus Fee-for-Service.  So really, across the board that’s — the executive order is the initiation of the process now of examining all of that […]”

In fact, the Center for Medicare Advocacy (the Center) has documented that this Administration has been promoting Medicare Advantage over traditional Medicare through various means, including the program’s outreach and enrollment materials, marketing policies, and benefits.

Scales Already Tipped in Favor of Medicare Advantage

The Center continues to draw attention to the Medicare Advantage (MA) program’s growing imbalance with traditional Medicare.  A number of legislative and regulatory policy changes have tipped the scales in favor of MA.  For example, coverage expansions such as the ability to provide new supplemental benefits have been advanced in MA, but not in traditional Medicare. In recent years, this has been exacerbated by a concerted effort on the part of the Medicare program to steer beneficiaries toward enrollment in private MA plans rather than providing objective, neutral information about coverage options.

Despite provisions of the Affordable Care Act that reined in excessive overpayments to MA plans, there is still evidence that MA is costing the Medicare program more than traditional Medicare spends per individual, with mixed health outcomes.

At the very least, there must be payment parity between traditional Medicare and private MA plans. As we have stated elsewhere, wasteful spending on MA should be reinvested into the Medicare program to the benefit of all people with Medicare, not just those who choose to enroll in private plans.

The President Should Work to Improve Health Care for All Rather than Attacking Proposals to Expand Coverage

Instead of focusing on policy proposals that would improve people’s health care now, the President’s speech announcing the EO relied on tired tropes about the threat of “socialism” without a hint of irony relating to the red scare tactics used to try to defeat the original passage of the Medicare program.  As noted by the Washington Post’s Health 202 in September 2018, “Medicare as it exists today – a government-run service for all elderly Americans – is the closest thing America has to socialized medicine. And there’s nothing in Democratic proposals that indicate that expanding it would make the program less available for current recipients.”

Further, as noted in today’s Health 202, “the president will promise to strengthen Medicare Advantage as a way of improving health-care coverage for millions — even as his administration refuses to defend the Affordable Care Act in a high-stakes lawsuit in which a ruling is expected any day now.”

Only about one-third of Medicare beneficiaries are enrolled in Medicare Advantage plans; the rest choose traditional Medicare. Proposals that only help those enrolled in private MA plans leave behind the vast majority of older adults and those with disabilities who rely on Medicare, while building a path to a private, HMO-like Medicare program. The Center for Medicare Advocacy has developed a Medicare Platform that outlines various proposals that would improve the program for all, including parity between traditional Medicare and Medicare Advantage plans.

As Judith Stein, Executive Director of the Center for Medicare Advocacy, notes, “This Executive Order is designed to bolster the insurance industry by steering beneficiaries into private Medicare Advantage plans, at the expense of most beneficiaries and Medicare’s future. If the Administration truly cares about improving access to Medicare and health care, it will work to improve quality coverage for all Medicare beneficiaries, including those in traditional Medicare.”

October 4, 2019 at 3:50 pm Leave a comment

Center for Medicare Advocacy Files Amicus Brief In Support of the Affordable Care Act

On April 1, 2019 the Center for Medicare Advocacy joined AARP and Justice in Aging in filing an amicus brief in Texas v. United States, urging the Fifth Circuit Court of Appeals to reverse the trial court’s December 2018 ruling that would nullify the entire Affordable Care Act (ACA). The three organizations highlight the ACA’s critical protections for older adults and the disastrous ramifications that would ensue if the law were to be struck down. The amicus brief was filed in support of the appellant states, which are led by California. Last week, the U.S. Department of Justice announced a new, more extreme position in the case, maintaining that the entire law must be invalidated.

The brief explains that the ACA is a lifeline for older adults, who rely on it for their health and financial stability. For “pre-Medicare” individuals, ages 50-64, the law guarantees coverage of preexisting conditions and limits how much more insurers can charge based on age. For Medicare beneficiaries, the ACA lowers medical costs by, among other things, closing the “doughnut hole” in the Medicare Part D prescription drug benefit. That provision alone has saved more than 11.8 million Medicare beneficiaries over $26.8 billion. The law eliminated out-of-pocket costs for numerous preventive services. The ACA also helps nursing facility residents by protecting against fraud and abuse. Finally, the ACA strengthens the financial solvency of the Medicare program, having extended the life of the Medicare Trust Fund by approximately eight years.

“If the ACA is struck down,” said Judith Stein, Executive Director of the Center for Medicare Advocacy, “millions of older adults and people with disabilities will lose the health care coverage and consumer protections they have relied on for almost a decade.” Because the ACA contains around 165 provisions that impact Medicare, it will also throw the Medicare program into fiscal and administrative turmoil, which will disrupt the nation’s health care system and economy.  It will plunge the more than 100 million people with preexisting conditions into uncertainty about whether they can obtain coverage.

As the brief states:

The ACA is deeply rooted into the nation’s health care system and economy. Millions of Americans depend on the Act for their health, protection, and well-being. Their lives now hang in the balance…. The ACA is the law of the land.

April 3, 2019 at 8:06 pm Leave a comment

Medicare Platform: Core Considerations for Today & Tomorrow

The Center for Medicare Advocacy works for a comprehensive Medicare program and quality health coverage and care for all people. To accomplish these goals for current and future beneficiaries in the changing health care environment, we seek to:

  • Improve Medicare for current and future beneficiaries.
  • Support the development of the best method possible to increase access to quality health coverage and care for the most people.

Medicare Platform to Improve Medicare for all beneficiaries, now and in the future:

1. Consumer Protections and Quality Coverage for All Medicare Beneficiaries (Including Parity Between Traditional Medicare and Medicare Advantage)

  • Cap out-of-pocket costs in traditional Medicare
  • Require Medigap plans to be available to all individuals in traditional Medicare, regardless of pre-existing conditions and age (“Guarantee Issue” and “Community Rating”)
  • Ensure all benefits in Medicare Advantage are also available in traditional Medicare
    • For example, include all MA “supplemental benefits,” waiver of 3-day prior hospital stay requirement for SNF coverage, coverage for home health aides, coordinated care
  • Simplify enrollment in traditional Medicare, Part D and Medigap, and ease transitions from other insurances to Medicare
  • Improve consumer protections in Medicare Advantage
    • Standardize benefit packages,
    • Strengthen network adequacy requirements
    • Strengthen plan oversight
    • Strengthen marketing protections
  • Ensure parity between mental health and physical health coverage
  • Ensure the Medicare appeals system is cost-effective, accessible and fair

2. Reduce Ongoing Barriers to Care

  • Eliminate the harm of hospital “Observation Status”
  • Home Health – Ensure access to coverage is actually available for all beneficiaries who meet coverage criteria, ensure access to legally authorized home health aides, resolve conflicts between payment models and coverage laws
  • Jimmo Implementation – Ensure beneficiaries with longer-term, chronic, and/or debilitating conditions have full access to skilled nursing, therapy and related care needed to maintain their conditions or slow decline

3. Improve Traditional Medicare

  • Add oral health, audiology, vision coverage
  • Restructure Medicare to make it comprehensive, simpler and affordable
  • Increase Low-Income Protections in the Medicare Savings Program (at least on par with ACA subsidies)
  • Long-term Care – Add coverage over time. For now, make incremental improvements (For example, repeal homebound requirement for home health coverage, repeal requirement that individual need skilled care and be homebound to qualify for home health aide coverage, repeal requirement that DME generally be needed in the home)

1/2019

January 30, 2019 at 3:11 pm Leave a comment

Center for Medicare Advocacy Statement on the Nomination of Judge Brett Kavanaugh to the United States Supreme Court

The Center for Medicare Advocacy adds our voice to those concerned about the nomination of Judge Brett Kavanaugh to the United States Supreme Court. As a public interest law organization committed to fair access to quality health care, equal rights for all as we age, and due process, the Center has serious reservations about this nomination.

Judge Kavanaugh’s lengthy record on the D.C. Circuit Court of Appeals does not bode well for the millions of families who rely on critical health care programs and our Constitutional form of government.  For example, in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), Judge Kavanaugh dissented in a 2-1 decision that affirmed the constitutionality of the Affordable Care Act, maintaining that the challenge against the Act could not be heard before the individual mandate’s tax penalties took effect. Just as concerning, Judge Kavanaugh stated in his decision, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” 661 F.3d at 50 n.43. This statement raises serious concerns about Judge Kavanaugh’s commitment to ensuring the judiciary continues to serve as an equal branch of government to the executive branch, and as a check and balance to the President.

Further, as the NAACP noted in a statement opposing the nomination, “He has been a strong and consistent voice for the wealthy and the powerful. Over and over again, he has ruled against civil rights, workers’ rights, consumer rights, and women’s rights.”

The Supreme Court will decide myriad important cases in the years ahead, impacting the well-being of the country’s most vulnerable citizens and residents. It is critical that judicial nominees – especially those to our highest court – are committed to protecting and enhancing access to quality health care, not to advancing powerful and corporate interests.

“We are living in a time where access to justice, essential health care benefits and civil rights are under attack,” says Judith Stein, executive director of the Center for Medicare Advocacy.  “There has been a sustained effort to undermine the Affordable Care Act, privatize Medicare, and decimate Medicaid. Low-income people have found it increasingly difficult to have their cases heard in federal courts. The Supreme Court must stand apart, as a trusted, fair arbiter of individual and societal rights. Regrettably, Judge Kavanaugh’s record does not warrant that trust and his presence on the Court will significantly impact social justice for generations to come.”

As advocates for older adults and disabled people, we oppose any threats – legislative, executive or judicial – to Medicare, Medicaid, the Affordable Care Act and due process of law. Thus, the Center for Medicare Advocacy must also oppose this nomination.

July 11, 2018 at 5:22 pm Leave a comment

Tax Cuts and Cuts to Medicare & the Social Compact

Center for Medicare Advocacy Executive Director Judith Stein was recently featured in the New York Times explaining how the devastating tax bills will lead to devastating cuts to Medicare and the social compact we all rely on.

Re “Republicans Are Coming for Your Benefits,” by Paul Krugman (column, Dec. 5):

Make no mistake: The tax cuts for corporations and wealthy people that Congress is determined to pass will lead to major cuts to health and economic security for the rest of us.

The Congressional Budget Office anticipates that Medicare alone will be cut by $25 billion in 2018, and the bills also set up future cuts to Medicare, Medicaid and Social Security. The tax legislation would also increase taxes for millions of households with yearly incomes below $200,000.

American families will be expected to pay the price for the trillions added to the federal deficit. Indeed, Senator Marco Rubio said recently that passage of the tax bill “will mean instituting structural changes to Social Security and Medicare.”

Speaker Paul D. Ryan said Congress will have to cut so-called entitlement programs. That’s code for Medicare, Medicaid and Social Security.

Most people and families won’t benefit from these tax cuts. Yet most will be harmed by the spending cuts needed to pay for them. Instead of gutting the social compact Americans rely on, Congress should work to pass true tax reform that helps all Americans and invests in a better future for everyone.

December 12, 2017 at 4:02 pm Leave a comment

Tax Cut Bill Just Got Worse. Health Care at Risk.

Congress’ rushed effort to push through a massive tax cut for corporations and the wealthy presents a clear and present danger to health coverage, other vital programs, and families throughout the country. After adding $1.5 trillion to the federal debt, policymakers will use the higher debt – created by the tax cuts – to argue that deep cuts to Medicare, Medicaid, Social Security and other bedrock programs are necessary.

Amazingly, the tax cut bill just got even worse. After failing repeatedly to repeal the Affordable Care Act (ACA), the Senate is now seeking to repeal the ACA’s individual mandate to purchase insurance coverage in order to help pay for tax cuts. They know this will devastate the ACA.

According to the Congressional Budget Office (CBO), without this provision far fewer people – particularly younger and healthier people – will buy health insurance, which will lead to 13 million people without coverage, and higher premiums for millions more.

To add insult to injury, the CBO also stated that, in addition to the longer-term threats the tax cut poses to Medicare, the cut would also immediately threaten the program. Indeed, CBO projects that the enormous cost of the tax bill would prompt immediate, automatic and ongoing spending cuts to Medicare – $25 billion in 2018 alone.

It’s time to stop this fast-track process to starve the federal budget and pay for massive tax cuts by undercutting the health and economic security of millions of American families.

November 15, 2017 at 10:46 pm Leave a comment

Medicare Home Health Coverage is Not a Short-Term, Acute Care Benefit Congress Acted to in 1980 to Provide for Longer-Term Coverage

Medicare home health coverage is often erroneously described as a short-term, acute care benefit. This is not true. Although it may be implemented in this way, under the law people who meet the threshold qualifying criteria (legally homebound and needing skilled care), are eligible for Medicare home health coverage so long as they need skilled care.[1] In fact, Congress actually acted affirmatively to authorize long term Medicare home health coverage in 1980 – removing the annual cap on visits and rescinding the prior hospital stay requirement.

Congressional Action and Legislative History

The Omnibus Reconciliation Act of 1980 (OBRA 1980)[2], expanded the Medicare home health benefit. Prior to this, beneficiaries only enrolled in Part A were eligible for up to 100 home health visits annually, following a three day hospital stay. Coverage was also available under Part B, also limited to 100 visits per calendar year, but this coverage was not dependent on a prior hospitalization. OBRA 1980 eliminated the annual visit cap and the Part A prior hospitalization requirement, thus affirmatively expanding coverage for beneficiaries.

In the OBRA 1980 legislative history, Congress expressed a desire to further liberalize home care coverage, noting there were many “meritorious and deserving alternatives” proposed, and that agreement was reached on these particular improvements.[3] Thus, it is reasonable to infer that these changes – which made it clear that Medicare home care coverage is not short term or linked to acute care – were decisions Congress carefully considered and agreed upon.

Elimination of the Annual Cap on the Number of Covered Home Health Visits

Prior to 1980, coverage was capped under both Medicare Parts A and B at 100 home health visits per year. In the legislative history of OBRA 1980, Congress expressly stated that “unlimited visits would be available”[4] and that the “bill provides Medicare coverage for unlimited home health visits.”[5] The Congressional intent is clear: By removing the annual visit cap, Congress meant to authorize home health coverage for the long term – when appropriate and when other coverage criteria are met.

            Elimination of the Three-Day Prior Hospital Stay

Previously, beneficiaries only enrolled in Medicare Part A could not access home health coverage without a prior three-day hospital stay. This requirement did not apply to beneficiaries who also had Part B, as coverage under Part B was not predicated on a prior hospital stay. OBRA 1980 repealed the Part A prior hospital requirement. The Subcommittee on Health of the Committee on Ways and Means stated “Part A was designed to encourage early discharge of hospital and skilled nursing facility (SNF) patients who continue to need skilled care but not at the intensive level provided for in a hospital or SNF. The Part B benefit – no prior hospitalization required – offers those who require skilled care as an alternative to or postponement of hospitalization.”[6]

Congress eliminated the three day requirement under Part A, aligning it with Part B. (Thus allowing coverage under both Parts A and B “to postpone or avoid hospitalization.”) At the time, more than 1.1 million beneficiaries had Part A only and would benefit from the repeal of the prior hospital requirement.[7] Now, all beneficiaries can qualify for Medicare home health coverage whether they were recently hospitalized or not. Medicare home health coverage is available for homebound beneficiaries who need skilled nursing or therapy, whether they are recovering from an acute illness or injury and are expected to improve, or have a longer-term problem and need home care to maintain or slow decline of their condition. As Congress intended in 1980, Medicare-covered home care can often help beneficiaries forego avoidable hospitalizations.

Conclusion

Medicare can be a source of coverage for long-term home health care for people who qualify.

The relevant legislative history for OBRA 1980 makes it clear that Congress intended to “liberalize” the Medicare home health benefit, and that the changes were seen as “benefit increases” which would be “important to beneficiaries.”[8]

Congress’ 1980 action to reframe and expand Medicare home health coverage appears to be all but forgotten today. Home health care is often mistakenly referred to as a short-term, acute care benefit. This is in conflict with Congressional intent and long-standing Medicare law. The Center for Medicare Advocacy will continue to refute this fiction and advocate for beneficiaries who need and are eligible for long-term Medicare home health coverage and care.

November 7, 2017

[1] Medicare Benefit Policy Manual, Chapter 7 §§ 40.1.1 and 40.2.1.
[2] P.L. 96-499.
[3] Medicare Amendments of 1979, Report of the Committee on Ways and Means – 11/5/1979.
[4] Amendments to the Medicare Program, Subcommittee on Health of the Committee on Ways and Means – 6/15/1979.
[5] Conference Report, House Congressional Record, Pg 31375 – 12/1/1980.
[6] Amendments to the Medicare Program, Subcommittee on Health of the Committee on Ways and Means – 6/15/1979.
[7] Medicare Amendments of 1980, House Report of the Committee on Interstate and Foreign, Pg 47.
[8] Conference Report, House Congressional Record, Pg 24206 – 9/4/1980.

November 7, 2017 at 8:43 pm Leave a comment

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