Opinion | Healthcare

Medicare's broken promise to people in nursing homes

The views expressed by contributors are their own and not the view of The Hill

American nursing homes are in a crisis, now reporting at least 54,000 deaths from COVID-19 outbreaks. But a new crisis looms for elderly residents who survived outbreaks only to find that no one will pay for their care. Medicare promised emergency benefits months ago, but has since dropped the ball, leaving patients and their families in the dark. If Medicare does not step in soon, thousands of our most vulnerable citizens could be trapped in a bureaucratic quagmire that threatens to cut off their care or drive their families into bankruptcy.

Around 1.5 million people live in skilled nursing homes. Thousands of them rely on Medicare to recover in homes after long hospital stays. The out-of-pocket cost of rehab is higher than almost any family can afford on their own. The median cost starts at $300 per day, while some acute care exceeds $1,000. Medicare covers the cost of daily rehab in such homes, as long as it is medically necessary, for up to 100 days. It's a lot. But it gets elderly patients back on their feet, without draining their life savings and forcing them onto public welfare rolls.

Tragically, COVID-19 has made it nearly impossible for many elderly patients to recover within that 100-day window. Doctor's offices closed their doors to older patients, citing infection risks. And as outbreaks spread like wildfire, some nursing homes forced patients into isolation in their own rooms, limiting access to critical therapy they needed to recover.

So, in a little-noticed announcement on March 13, 2020, Medicare promised to give more time to patients who could show they were "prevented or delayed by the emergency" from completing their rehab. The idea was that homes should not force patients trapped in the pandemic to choose between losing their care and bearing the impossibly high cost of nursing care on their own.

It's been almost 100 days since Medicare's March 13 announcement. But as time runs out, Medicare has said almost nothing about how elderly patients can get the emergency benefits they were promised. Medicare has not published any rules or guidelines to help families understand if their loved-ones are eligible, what evidence they need to qualify, or what process exists for them to apply. 

As someone who studies big hearing programs, like Medicare, I can tell you this is a recipe for disaster. The Medicare hearing system is already notoriously difficult to navigate. One recent study showed only 1 percent of families even tried to file claims when denied care in skilled nursing homes under ordinary circumstances. Medicare's foot-dragging will not only generate more confusion, backlogs and expenses, it will deprive families of critical benefits at the worst possible time - as they are shut out of their loved-one's homes, in the middle of a life-threatening pandemic.

This is more than an academic issue for me. My mom was on the road to recovery in a nursing home, when last month an outbreak at her facility infected 75 people, killed eight, and forced her into isolation. When I called to extend her benefits, Medicare officials gave me a stunning response: It was out of my hands. Only the nursing home could apply to extend mom's care. We could not make our own arguments, submit evidence, or appeal if her private facility decided not to apply.

This flouts Medicare's usual rules, which give patients and providers separate rights to apply for benefits to avoid conflicts of interest. But it also places too much work on facilities overwhelmed by outbreaks, who themselves don't understand Medicare's indecipherable plans. I've spent weeks calling lawyers, Medicare offices and my local representative just trying to get someone at our facility to file a claim. Worse, unlike Medicare claims brought by patients - who get expedited hearings in 60 days - claims by providers currently take an average of four years to decide.

Our parents and grandparents in nursing homes deserve better. At a minimum, Medicare should publish transparent rules so families can present their own claims and be heard.

But a clearer process is not the only answer. Most won't have lawyers to help them understand complex Medicare rules in an emergency.

To make sure deserving claims do not fall through the cracks, Congress or Medicare should automatically extend benefits for some groups, like those at nursing homes with large outbreaks. That would save Medicare from having to hear thousands of new cases on the fly and families from racing to find lawyers to handle them. 

COVID-19 lays bare the perils to public safety when so many lack health care. But even those who thought they could count on Medicare as their lifeline are not safe when no process exists for them to keep it. Congress has already approved $2.4 trillion to bail out businesses and bolster unemployment benefits because of COVID-19. Surely, we also can afford to make programs work for our most vulnerable, at the very center of this crisis, so they may finally heal.

Adam Zimmerman is a Professor of Law at Loyola Law School, Los Angeles, where he teaches administrative law, civil procedure and complex litigation. He is the author with Michael Sant'Ambrogio of "Inside the Agency Class Action" in the Yale Law Journal. Follow him on Twitter @Adam_Zimmerman

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