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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.
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.
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.
New Medicare Payment Model Puts People Who Need Home Care in Jeopardy
Several decades ago, it was standard practice to keep patients in the hospital for days, or even weeks after the most routine procedures. For patients with chronic conditions the situation was even worse, often involving frequent, long stays in the hospital. Thanks to advances in home health care, older Americans now have the choice to age at home, while receiving quality health care.
Most home care for older adults is paid for through Medicare, which covered nearly 3.5 million people last year. This makes it all the more important that the Medicare home health benefit be strengthened – to promote quality, accessibility, and cost effectiveness. Regrettably, a new proposal does just the opposite.
Recent regulations issued by the Centers for Medicare & Medicaid Services, which propose a new home health payment system, are alarming. The proposed payment system, known as the Home Health Groupings Model, would radically disrupt the home health care landscape. HHGM and associated payments would discriminate against patients with chronic conditions, threaten access care in rural and undeserved areas, and cut hundreds of millions of dollars from the Medicare home health program.
Proposed to roll out as early as 2019, the HHGM is an untested model that would have significant, wide-ranging effects on access to home care for the most vulnerable older and disabled Medicare beneficiaries. Among its many provisions, HHGM would cut the standard episode of care from 30 to 60 days, which will favor beneficiaries who have the ability to recover quickly, while diminishing access for people who are clinically complex and have longer term, chronic illnesses and impairments.
The HHGM discriminates against those living with chronic conditions – who typically need care for longer periods of time – by assigning lower payment weights for cases with longer lengths of stay. Thus, those with the greatest need would be assigned the fewest resources, despite the fact that these are the very people who need the most intensive care. Further, beneficiaries who require care for longer than 30 days and have not been admitted to home care from a hospital or other institution will find it harder to obtain, and retain, home care. Payment under the proposed rule would be lower for this population.
Finally, it is unclear that the proposed payment rules are lawful as they conflict with Medicare coverage rules, which define the scope of the Medicare home health benefit. They also conflict with the settlement in Jimmo v. Sebelius, which reiterates that Medicare can cover long-term home care for people who need skilled care to maintain or slow deterioration of their conditions.
Fortunately, the administration still has an opportunity to change course before this harm occurs. CMS should pull the proposed payment rule and work with beneficiaries, advocates, providers and other stakeholders to develop a payment model that protects the integrity of the Medicare home health benefit – and ensures access to home care for all who qualify, including people with chronic conditions. The health and welfare of millions of older and disabled people are at stake.
Looking to Medicare as a Model for Health Care Coverage? Improve Medicare First.
In a September 2017 editorial, the New York Times reviewed proposals to improve health care coverage as efforts to repeal the Affordable Care Act (ACA) are stalled – at least for now. As noted in the editorial, “[t]he Republican campaign to repeal Obamacare, for all its waste of time and energy, has at least gotten people to talk seriously about proposals to improve the health care system.”
When looking to expand access to health care coverage, it’s natural to look to Medicare, the country’s well-tested, flagship health insurance program. Medicare is not only more cost-effective than private insurance, it’s also beloved by beneficiaries, their families, and the general public. Thus, proposals presented by some would aggregate our current, multi-pronged coverage system into a single-payer model, which some call “Medicare-for-All.” Other proposals would allow people under age 65 to buy-into Medicare.
Considering several of these proposals, a recent article in the New Republic asked: “[i]f the plan is to transition to something like Medicare-for-All, shouldn’t the strategy begin with making Medicare great?”
Yes! We agree, before moving more people into Medicare, it needs to be improved and simplified. With all of its virtues, Medicare also has flaws. There are still significant gaps in coverage – vision, hearing and routine dental, not to mention long-term care. Traditional Medicare does not include a cap on out-of-pocket expenses or its own prescription drug benefit. Medicare Advantage adds costs to the system and significantly limits enrollees’ provider choices. Assistance for low-income individuals is limited. And, all too often, payment and quality measures lead many providers to prematurely terminate, or avoid providing medically necessary care entirely, for people with longer-term, chronic and debilitating conditions.
Traditional Medicare must include the same benefits and the same limits on cost-sharing as private Medicare Advantage. People who choose traditional Medicare ought to have the same cap on out-of-pocket costs and the same “one-stop-shopping” opportunities as people in private Medicare Advantage. Like their counter-parts in Medicare Advantage, people who choose traditional Medicare should be able to obtain prescription drug coverage without having to purchase a separate Part D plan. If supplemental, Medigap insurance continues to be necessary to help with cost-sharing, it should be available and affordable for all people with Medicare, including people with disabilities and pre-existing conditions, which it is not the case in many states.
As health policy discussions (hopefully) turn towards expanding, rather than contracting, health coverage, the Center for Medicare Advocacy will work to improve Medicare for all those it currently serves, and may serve in the future. This is a critical first step before adopting Medicare as a basis for health coverage expansion.
Time to Renew, Not Repeal or Retreat!
Last week, an older adult wrote the Center for Medicare Advocacy:
“I will be on the streets at 66 years old without Medicare and Medicaid. It’s as simple as that. My money has all gone raising 3 granddaughters after their mother died. There are millions of stories like mine everywhere. We must help the least of us that had bad luck or are sick etc.” J.D., Medicare Beneficiary, Michigan
This week, on its first day, Congress passed a Resolution that begins the process to repeal the Affordable Care Act (ACA). Repealing ACA threatens access to health coverage and Medicaid for 20 million people. It would also reduce Medicare prescription drug coverage, reduce Medicare preventive benefits, and decrease the long-term solvency of the Medicare program.
ACA, Medicare and Medicaid are intertwined. Repealing the Affordable Care Act would also harm Medicare and Medicaid. It would harm the people, like Mrs. D, who raised her own family and is now raising her grandchildren.
Policy-makers need to know how their decisions impact real people. If you know someone who has benefited from the Affordable Care Act, Medicare and/or Medicaid – Tell Your Story!
Medicare: Es El Momento Para Renovar y No Retroceder!
Si, Medicare importa! Abrio sus puertas al cuidado medico al proporcionar cobertura que el mercado privado no querria ofrecer. Hoy dia 55 millones de personas viejas y personas incapacidadas disfrutan de atencion medica gracias a Medicare. El programa alivia familias de preocupacion y mejora la calidad de sus vidas, su tranquilidad, salud y seguridad economica. Sin embargo, en 2017 todo esto esta a riesgo.
Tenemos que mantener Medicare al dia, con salud oral, audiologia y cobertura de vision. Deberiamos pagar solamante el mejor precio por medicamentos de receta, y poner fin al derrame de los dolares de Medicare a las ganacias de las companias de seguros. Medicare tiene que quedar vital y relevante. Pero esto solamente puede ocurrir si Medicare se renueva y no se retrocede de su promesa.
Desafortunadamente, muchas de las personas entrando en ls escena nacional que van a establecer nuevas politicas estan dedicadas a convertir Medicare de un programa de beneficios definidos a un programa de contribuciones definidas que ayudaria a pagar por primas de seguros individuales y privadas. Este resultado seria el fin de Medicare tal como lo conocemos, con sus multiples objectivos de proporcionar cubertura de la mas alta calidad y con los precios mas justos. En cambio, cada persona recibiria un comprobante en la forma de un pago parcial para buscar y comprar un seguro medico en el mercado privado.
Por mas de 50 anos Medicare ha servido las nececidades de familias individuales y al mismo tiempo el programa ha ayudado a unir nuestra familia nacional. Las informaciones aqui incluidas, comentarios y historias veridicas demuestran lo que esta al riesgo si deshacemos este tesoro nacional- y como podemos renovarlo por las generaciones por venir.
“Antes de que eramos eligibles para Medicare nuestras finanzas casi fueron destruidas por primas de seguros altas…Medicare ha hecho una diferencia enorme en nuestra capacidad de disfrutar de una cobertura adequada, especialmente desde que la crisis economica resulto en la disminucion severa de nuestros fondos de jubilacion.”
K.M., Beneficiaria de Medicare, Minnesota
#SalvarMedicareAhora
Medicare Beneficiary Costs Will Rise if Affordable Care Act is Repealed (And Private Medicare plans will be paid more)
With all the talk about repealing the Affordable Care Act (ACA/Obamacare), many people miss the impact repeal would have on Medicare, older and disabled adults, and their families. ACA added preventive benefits to Medicare, decreased Part D cost-sharing for prescription drugs, and increased the long-term solvency of Medicare by about 11 years.
According to the Kaiser Family Foundation:
” Full repeal would increase spending primarily by restoring higher payments to health care providers and Medicare Advantage plans. The increase in Medicare spending would likely lead to higher Medicare premiums, deductibles, and cost sharing for beneficiaries, and accelerate the insolvency of the Medicare Part A trust fund. Policymakers will confront decisions about the Medicare provisions in the ACA in their efforts to repeal and replace the law.”
Policy-makers and people who rely on Medicare should think twice before supporting legislation that will give windfalls to private insurance companies, while reducing coverage and increasing costs for older and disabled people.
The Rush to Destroy Medicare as We Know It
November 29, 2016 – Despite statements during the campaign that he would protect Medicare, the President-Elect is indicating otherwise with his selections of Rep. Tom Price (R-GA) to head the Department of Health & Human Services, and health consultant Seema Verma to head the Centers for Medicare & Medicaid Services.
Price is an ardent foe of the Affordable Care Act, although it has extended the solvency of the Medicare Part A Trust Fund, closed gaps in prescription drug coverage, and expanded preventive benefits under Medicare.
Particularly threatening to Medicare and Medicare beneficiaries, says Center for Medicare Advocacy Executive Director, Judith Stein, “Rep. Price favors letting people opt-out of Medicare. Allowing beneficiaries – most likely the healthiest beneficiaries – to opt out of Medicare is an example of what Newt Gingrich in 1995 called letting the program ‘wither on the vine.’ The key to future solvency is a larger coverage pool, not a smaller one. That’s just how insurance works.”
In addition, Mr. Price’s proposals to rely on tax credits as incentives to purchase insurance ignore the fact that a huge number of families don’t make enough income for such credits to be worthwhile. Further, CMS nominee Verma favors Health Savings Accounts – another private option that would break up the Medicare community. “All of these proposals,” continued Ms. Stein, “will be sold to Medicare beneficiaries as ‘preserving’ and ‘protecting’ Medicare. In fact, they will end Medicare and turn it over to the private insurance industry.”
Medicare Is Withering on the Vine
In 1995 Newt Gingrich predicted that privatization efforts would lead Medicare to wither on the vine. He said it was unwise to get rid of Medicare right away, but envisioned a time when it would no longer exist because beneficiaries would move to private insurance plans.
Well … that’s what’s happening. Not just by happenstance, but rather according to a determined, strategic plan. The plan has included the following:
- Government subsidies to private plans, renamed “Medicare Advantage,” ranging from 14% – 2% above traditional Medicare per-beneficiary costs;
- Additional benefits added to private Medicare Advantage, benefits that weren’t added, and aren’t allowed, in traditional Medicare;
- Part D prescription drug coverage wrapped into Medicare Advantage, but not into traditional Medicare;
- Increases in traditional Medicare Part B premiums, especially for the middle class;
- Limits on access to Medigap insurance to supplement traditional Medicare and on benefits for those who can obtain a Medigap policy.
It didn’t take a crystal ball. It took a vision, planning and persistence.
The Center for Medicare Advocacy also has vision, planning and persistence. We do all we can to keep Medicare focused on the needs of older and disabled people, not the insurance industry. We speak out with expertise and with the stories of real people.
With your support, we’ll keep insisting that Medicare is fully present for the families that rely on it – now and in the future. We’re ready to keep Medicare from withering on the vine.
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