Medicare Changes May Leave ALS Patients Without a Voice

As of December 1, 2014, some Medicare beneficiaries with amyotrophic lateral sclerosis (ALS) could lose access to certain technological devices designed to facilitate communication, according to a report from Kaiser Health News. Although ALS awareness reached the national spotlight this summer with a far reaching fundraising campaign known as the “Ice Bucket Challenge,” money and notoriety have not insulated patients with ALS from what could be damaging Medicare changes, which could put limits on the ability of ALS patients to effectively communicate.

Speech Devices

At issue are speech generation devices, which are the devices that many patients with ALS use to communicate with others both at range and up close. In a February, 2014, “Coverage Reminder” posted by CMS, a distinction was drawn indicating that Medicare may change the way it reimburses speech devices. Historically, Medicare has provided reimbursement for two kinds of speech generation devices, those classified as “dedicated devices” and those that are upgradeable or “locking.” According to the ALS Association (ALSA), since 2001, Medicare beneficiaries have been able to purchase what are known as locking devices and receive Medicare reimbursement for the basic functions of the device. Then, if a beneficiary chooses, the beneficiary can pay out-of-pocket, without Medicare reimbursement, to unlock additional functions, like word processing, accounting, or other non-medical functions. The locking devices are to be distinguished with devices that only serve a speech generation function. Medicare has also historically covered these “dedicated devices.” Traditionally, Medicare has covered 80 percent of the cost of basic speech generation devices, without regard as to whether they are dedicated or upgradeable.

Change

The Coverage Reminder appears to upend the traditional reimbursement model and “specifies that in order for a speech generating device (SGD) to be considered for reimbursement under the Durable Medical Equipment (DME) benefit, it must be a “dedicated” device.” According to the KHN report, beneficiaries and patient advocates have read the CMS notice to mean that beneficiaries will no longer be provided the opportunity to upgrade reimbursable devices, even at their own cost. In other words, under the new coverage, Medicare will only cover basic devices that are incapable of upgraded functioning. The results are serious for ALS patients who may lose functionality like the ability to connect to the internet. For some patients, that would mean losing the only available means to communicate with people who are not in their immediate vicinity. In some cases, without access to the internet, patients will be left vulnerable and unable to call for help if the need arises.

Device Cost

The changes are likely due to the increases in technology and cost. KHN reports that a basic speech generation device costs somewhere in the neighborhood of $4000, while upgrades, for things like eye-tracking technology, can bring a device’s cost up to as much as $15,000 or more. According to KHN, Medicare has typically paid for about 3,000 devices each year.

Rentals

The coverage change follows another change by CMS that alters the way patients come to own devices. According to the ALSA, on April 1, 2014, Medicare changed the way it pays for speech generation devices by eliminating the ability of Medicare beneficiaries to either rent or outright purchase a device. Under the new paradigm, beneficiaries are required to rent a device over a 13-month period before being granted the right to purchase the device. Each month, people with ALS are contacted by a device’s manufacturer to be sure that the device is still needed. Only upon the expiration of the 13-month period do the manufacturer’s questions stop.

Outreach

Efforts have been made to slow or stop the decision to change speech generation device reimbursement. For example, 200 members of Congress sent a letter to CMS urging the agency to address ALS patients’ concerns about device access. CMS has not yet responded to the congressional request for action. ALS patients are hoping that they can stop the change before it takes effect in December. According to KHN, ALS patients are quick to point out that they are not asking for Medicare to cover any extra device functionality, they just want Medicare to continue to cover the portion of the cost of speech generation devices that the program has always covered.

 

CMS Urged to Reimburse Providers for End-of-Life Planning

Should Medicare and Medicaid reimburse providers for counseling patients regarding end-of-life issues? Support for Medicare and Medicaid reimbursement for end-of life planning has been growing from a variety of sources, including Congress, state Medicaid programs, the American Medical Association (AMA), the American Academy of Family Physicians, and the Institute for Medicine (IOM). An August 30, 2014, New York Times article, noted that even private payers have begun reimbursing doctors for advance care planning service.

Congressional Support

“Currently, the time doctors spend having discussions with their patients about end-of-life care and planning is not reimbursed under Medicaid and Medicare. Without this incentive, these conversations are not happening,” according to a news release issued by Congressman Earl Blumenauer (D-Oregon). On March 14, 2013, Blumenauer and Phil Roe (R- Tennessee) introduced a bill titled “Personalize Your Care Act” (H.R. 1173) that would provide for coverage of voluntary advance care planning consultation under Medicare and Medicaid every 5 years or in the event of a change in health status. In summary, the bill, which had 58 additional co-sponsors, allows for periodic revisiting of advance care documents and goals of care recognizing that an individual’s preference may change over time. It also provides grants to states to establish or expand physician orders for life sustaining treatment programs and improves the accessibility of advance care planning documents by ensuring that an individual’s electronic health record is able to display his or her current advance directive and/or physician orders for life sustaining treatment so that his or her wishes would be more readily known. The bill was endorsed by AARP, American Academy of Hospice and Palliative Medicine, American College of Physicians, American Geriatrics Society, American Hospital Association, and the American Academy of Family Physicians.

Blumenauer along with 33 other members of the House of Representatives sent a letter to Marilyn Tavenner, CMS Administrator, on September 24, 2014, urging CMS to adopt recommendations to reimburse Medicare providers for voluntary discussions with patients on end-of-life care and planning. Blumenauer cited to a recent study in the New England Journal of Medicine that found that more than one in four elderly Americans lacked the capacity to make their own medical care decisions at the end of life.” He noted that this leads to decisions that are made by family members and doctors “who may not know the treatment preferences of their loved one.” To conduct complex and time consuming end-of life discussions regarding patients’ goals and wishes, Blumenauer stressed that providers need adequate time, space, and reimbursement.

AMA Establishes End-of-Life CPT Codes

Blumenauer noted in the letter that the AMA has created two specific current procedural terminology (CPT) codes for providers to report advance care planning services with patients to CMS. He urged Tavenner to adopt the CPT codes recommended by the AMA in the Medicare Physician Payment Schedule so that providers could be reimbursed for end-of life discussions with patients. According to a September 19, 2014, article in Medscape Multispecialty Medical News, the AMA CPT codes, which will be incorporated into the CPT in January 2015, are “a necessary step for Medicare to begin considering reimbursement for end-of-life discussions between physicians and patients” and also “will help streamline reimbursement from private payers.” One of the two codes would be used for the first 30 minutes of face-to-face time with the patient or family member to discuss advance directives and the second code would be used to bill for each additional 30 minutes of planning.

The Medscape article noted that “The Illinois State Medical Society submitted an editorial proposal to the AMA’s CPT Editorial Panel requesting that a code be added for advance care planning services.” In response to the Illinois State Medical Society’s request, the CPT Editorial Panel created the new codes, which then “triggered an evaluation of the time and resources required to perform the services detailed in the code,” according to Medscape. The AMA’s Relative Value Scale Update Committee (RUC), which evaluates time resources and raw materials, “has met to discuss advance care planning services and has submitted its reimbursement recommendation to Medicare,” Medscape said.

IOM’s Report on “End-of-Life”

In its report “Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life,” published in September 2014, the IOM noted that the medical community has more knowledge about how to better engage patients and families in advance care planning and shared end-of-life decision making. The IOM committee recommended “integrated, person-centered, family-oriented, and consistently accessible care near the end-of-life be provided by health care delivery organizations and covered by government and private insurers.” IOM stated that advanced planning is of critical importance to ensure individuals goals and needs are met. Recognizing the usefulness of advance directives, the IOM stressed, nonetheless, that they “should not take the place of open, continuous communication.” IOM recommended payers and health care delivery organizations adopt standards “as a necessary component of high-quality care for individuals with advanced serious illness and their families and enable them to seek these services from their physicians and providers. “

Seeing Medicare’s Future Through Public Deliberation

 

A recent study took a novel approach to federal health care reform and asked the public for answers about how to reform Medicare. Mary Ginsburg of the non-partisan Center for Healthcare Decisions decided to explore Medicare reform by putting hard questions about reimbursement, quality, and coverage in the hands of ordinary Americans. The findings of the California Medicare CHAT Collaborative (MedCHAT) demonstrated that some Americans, or at least the 810 Americans that took place in the study, find a lot of common ground when it comes to redesigning Medicare.

Study

According to the MedCHAT report, MedCHAT is a computer-based interactive simulation where participants are confronted with comprehensive information regarding things like costs, coverage options, and current Medicare spending over a three our public deliberation.  The simulation is premised on the CHAT® (Choosing All Together) exercise. Participants are asked, in a group setting of eight to 15 people, to negotiate the best group of coverage options as well as indicate the reasons for arriving at given conclusions. Additionally, participants are asked to evaluate their decisions as citizens and not as individuals seeking coverage. The MedCHAT simulation is intended to replicate the kinds of decisions that lawmakers undertake when reforming health care programs by requiring participants to impose restrictions in one area any time they want to expand coverage in another area.

Findings

One of the key findings of the MedCHAT project was that 82 percent of participants agreed to a network model in place of the traditional Medicare model that provides relatively unrestricted physician choice. A key factor in that choice was the significant cost savings realized through the implementation of a network. In another cost saving measure, 85 percent of participants were willing to reduce spending on current and future Medicare beneficiaries in order to ensure the continued existence of the Medicare program.  Participants also heavily favored value based care, with 88 percent signing on to the idea. Adding additional benefits was another area where the majority of participants agreed. In the case of long-term care, 77 percent of participants agreed to at least one additional year of coverage.  Additionally, 69 percent of participants believed that long-term coverage for treatment of less severe mental health problems was a worthwhile additional benefit to expand what participants considered to be an underfunded and underutilized health care need.  A large majority of participants, about 81 percent, also believed that transportation costs should be an added Medicare benefits for seniors without support networks.

Rewards and Penalties

Latching on to the growing trend among private insurers, 85 percent of participants agreed that it was a good idea to include rewards and penalties as incentives for beneficiaries to improve health status while lowering the cost of health care.  Participants also felt strongly about having higher-income seniors pay higher premiums than they do now.

Weight of Public Opinion

The MedCHAT findings were revealed at a forum held by the American Enterprise Institute and the Engelberg Center for Health Care Reform at the Brookings Institution. The responses from a panel at that forum suggest that the findings might not carry much weight among politicians. According to a Kaiser Health News (KHN) report, John Rother, CEO of the National Coalition on Health Care, cautioned that what took place in California will not be an accurate predictor of how Congress will go about solving the problem. According to KHN, Ginsburg recognizes that Medicare reform will be a slow process; yet, Ginsburg indicated that the MedCHAT program was part of a “gradual process of enlightenment.” Whether the opinions of 810 Californians will have any sway on Capitol Hill remains to be seen. Although the likely influence of the MedCHAT findings is small, the study represents a novel perspective to a difficult question that few want to be responsible for answering.

Supreme Court Denied Review to Medicare Contractor Claims Challenge

The Supreme Court denied a petition for certiorari which challenged a Medicare contractor’s handling of over 15,000 individual medical claims submitted for inpatient rehabilitation services by one provider. This denial was announced without comment after the rehabilitation provider challenged 6,200 adverse decisions and another 8,900 claims that had not proceeded beyond the first level of administrative review for the past 11 years. The provider challenged the lower courts’ decision to foreclose the provider’s opportunity to pursue judicial review of those claims in conjunction with constitutional, federal, and state law claims against the Medicare contractor. The provider also presented the issue of an alleged procedural gap in the Medicare appeals process that resulted in the 11-year delay of the review of his claims.

Factual Background

Dr. James P. Little provides care at the HEALTHSOUTH Rehabilitation Hospital, which is classified as an inpatient rehabilitation facility (IRF) (collectively Southern Rehab.) pursuant to the Medicare program. According to the petition, CIGNA Government Services, LLC began to improperly deny Southern Rehab’s claims for Medicare reimbursement in 2001. Between 2001 and 2006, CIGNA continued to wrongly deny claims. While 6,200 of these claims were carried through to the Medicare Appeals Council and were ultimately denied, Southern Rehab asserted that 8,900 claims “remain stuck at the first level of administrative review,” due to a procedural gap.

Questions and Issues Presented

While Southern Rehab admitted in its petition that this action arises out of “a single provider’s claims for reimbursement,” it also asserted that “the case involves questions of exceptional public importance,” as it has the potential to impact “virtually every Medicare provider and beneficiary, now and hereafter, who traverses the administrative review process.” Specifically, in addition to highlighting the issue of the alleged 11-year procedural gap in the review process, Southern Rehab also presented questions to the Court in the following areas: (1) whether the Medicare statute allows providers to raise “inextricably intertwined” constitutional, federal, and state law violations against Medicare contractors; (2) whether non-Medicare reimbursement claims need to be presented to a government agency; and (3) whether the Medicare statute waives immunity for Medicare contractors in suits by providers claiming constitutional, federal, and state violations.