Aging Answers - Episode 5: Proposed Medicaid Rules Transcript - Norris McLaughlin, P.A., Attorneys at Law

Shana Siegel: Welcome to Norris McLaughlin’s Aging Answers, a limited podcast series discussing the key topics of elder law planning and long-term care. I’m your host, Shanna Siegel, Practice Group Leader of the Elder Law Group and member at Norris McLaughlin. In this episode, I will discuss two important new Medicare proposed rules.

So today I wanted to talk a little bit about two important new proposed rules that came out from CMS, from the federal government, and I’m going to talk more about these rules in an upcoming blog, so you can certainly look for that. But I wanted to provide kind of a high-level overview. These are really some important things that have been major issues for the elder law community for a while that are addressed in these rules, so we’re kind of excited about it.

So, the first is a rule that addresses a big Medicare problem, which has been observation status. So what observation status means, if you haven’t come across it, is when an individual goes into the hospital and they, seems like they’re admitted, they get into a room, they’re in a bed, not just in the emergency room, but actually in a room, but they were not actually admitted.

They were, they are kept there. on observation status. And the reason that that happens has to do with some arcane rules with regard to Medicare and how hospitals are billed. But it’s become kind of a common practice. And so, if you have someone who, you know, maybe they have a high fever, maybe they had a fall, for whatever reason, they do want to be monitored.

But they’re not considered admitted. And why this matters, why it can be really important, is that if you’re not admitted to a hospital, then you can’t qualify for post-hospital services. often. So, for instance, if you’re going to go into a skilled nursing facility after a hospital admission, you have to have been admitted for three days.

That’s the requirement. If not, then you’re not going to have that coverage under Medicare for the nursing home stay. So that can be a real problem because sometimes people don’t even know. So, they might end up in a nursing home and they don’t know they think they were admitted, but then they weren’t. So, this has been something that there’s been a lot of advocacy surrounding.

And so now what is proposed is that there is going to be a formal appeals process. because there was really no way to appeal this in the past. Once there was a decision, you could ask, and we would tell people to add, you know, advocate when they were in the hospital, but once they were left the hospital, that wasn’t something that they could appeal.

The new appeals process is not unfortunately going to be available for everyone. It’s going to be available if there was a change in status. So, if you were admitted to the hospital, but then they changed it to observation status, then you will have the right to appeal. The appeal will be multi-layered, so there can be an expedited appeal where, you can get a decision immediately, as well as a regular appeal that could even be done after you’ve left the hospital.

And in this situation, because they are adding this appeals process, they’re going to allow individuals who were hospitalized and on observation status anytime since 2009 enter an appeal and challenge that observation status. So that’ll be, you know, a really great opportunity for people who were on observation status and then had had that impact.

them, in regard to their post-hospitalization stay. So, the other rule that I wanted to talk about is more broad-based. It talks about a lot of changes related to Medicare, some of them more technical, but many of them very important. So the first thing that is included in this rule, which came out, it’s a proposed rule came out in November addresses financial incentives for agents and brokers.

So, when we have our Medicare open enrollment period, there are Medicare brokers. In fact, we had one on the podcast previous episode who was talking about how these brokers can help you to find the best plan for you? Well, it turns out that brokers have can have different compensation depending on different plans and that there’s kind of little bonuses and things that are built-in, so there are financial incentives for these agents or brokers that might result in them steering beneficiaries to certain Medicare Advantage plans over others.

Now, the differences may not be huge, and we can’t say that they’re necessarily impacting the brokers, but Medicare wanted to make sure to create an even playing field. So, they’ve redefined compensation to set a clear fixed amount that agents and brokers would be paid regardless of which plan the beneficiary enrolls in.

So, they will get a flat amount, it’s proposed at 642 for 2024, in that situation, that way there’s no question, there’s no incentive in terms of choosing one plan over the other. So, I think that’s kind of important. Another important change that’s within this proposed plan has to do with the expansion of behavioral health.

And, you know, I think the availability of mental health under all insurance plans is something that is a real issue for, for many people. And so now over the last year, Medicare expanded to include providers for drug and addiction counselors to allow for expanded coverage. And now under this rule, it expands coverage and allows for direct compensation to marriage and family therapists and mental health counselors.

So approximately 400, 000 people who are these marriage and family Therapists or mental health counselors are now going to be eligible for direct reimbursement from Medicare. So, you know one can only imagine that that’s really going to expand access and be a real wonderful thing for Medicare beneficiaries.

So, the third change that I’d like to talk about has to deal with supplemental benefits under Medicare Advantage plans. So, over the last decade Medicare plans have been adding a number of special supplemental benefits for a variety of different special populations. So for instance, chronically ill individuals.

So, if you are in a Medicare Advantage plan designed for individuals who are chronically ill, those plans might have some additional supplemental benefits like vision or dental, fitness, even vouchers for certain types of health-related items. But the use has been really low. It’s basically been kind of a marketing ploy.

So, the change here under this rule is that two things, kind of related. First is that there’ll be new standards for these benefits, that they must be items that are meant to and can show that they really will improve the health and overall function of the beneficiaries. So it can’t be something that’s kind of, you know, more fluff.

And secondly, that there has going to be mid-year enrolling notifications. So, a notification will go out about these benefits and providing more information, including how to access them, what’s available, and really giving You know, some good opportunities for people to be educated and know, and hopefully really increase the use of these special supplemental benefits.

And the last thing that I want to talk about is really important. We see all the time in our practice is the appeal rights of Medicare Advantage beneficiaries. When services are being terminated. So, I found often in my practice that individuals who are on traditional Medicare are going to get generally better coverage, more extensive coverage for rehab and related services post hospitalization than you would find for people on a Medicare Advantage plan.

So, an individual who did meet that three-day hospitalization, they may be entitled to up to 100 days of post-hospitalization care in a skilled nursing facility, but very often they’re really only getting 10, 15, maybe 20, 25 days and that very often the Medicare advantages are going to be terminating those sooner than you would find with a traditional Medicare plan.

So, what this rule does is it enhances the appeal rights, so that if an individual is going to be terminated, so they’re not, Medicare’s no longer going to be paying for their skilled nursing home or their home health care services, that they have the rights to appeal it. Now they’ve always had appeal rights, but this is really just going to enhance that and provide multiple levels of appeals.

So, you know, I think this is really important for those beneficiaries of Medicare Advantage plans because so often people are taken off guard and by the time they kind of know that they have this appeal, they’re being, you know, they’re being kicked off the facility. They don’t really have a practical opportunity to make an appeal, so I think this is going to be really important.

So, these are all things I’m going to be talking in more detail as well as some of the more technical issues that are included in the rule in my next blog, so certainly take a look out for that. This has been Norris McLaughlin’s Aging Answers, a limited podcast series discussing key topics revolving around elder law and long-term care planning.

I want to thank you, the listener, for being a part of our conversation. Be sure to tune in next time for a brand-new episode, and if you’d like to learn more about our work, please email me @ aginganswers at Norris-law.com.

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