Legal Dispute Continues Over Medicare Coverage of Physical Therapy

Four years after Medicare officials agreed in a landmark court settlement that seniors can't be denied coverage for physical therapy and other skilled care simply because their condition isn't improving, patients are still being turned away.

As a result, federal officials and Medicare advocates have renewed their federal court battle, acknowledging that they cannot agree on a way to fix the problem. Earlier this month, each submitted ideas to the judge, who will decide — possibly within the next few months — what measures should be taken.

Several organizations report that the government's initial education campaign following the settlement has failed. Many seniors have only been able to get coverage once their condition worsened. But once it improved, treatment would stop — until the people got worse and were eligible again for coverage.

Every year thousands of Medicare patients receive physical therapy and other treatment to recover from a fall or medical procedure, as well as to help cope with disabilities or chronic conditions including multiple sclerosis, Alzheimer's or Parkinson's diseases, stroke and spinal cord or brain injuries. Although the settlement removes the necessity to show an improving health condition, it doesn't affect other criteria and limitations on Medicare coverage. [...]

The agreement, approved in 2013, settled a class-action lawsuit against the Centers for Medicare & Medicaid Services filed by Center for Medicare Advocacy and Vermont Legal Aid on behalf of five Medicare beneficiaries, including Glenda Jimmo, and six nationwide patient organizations. Coverage doesn't depend on the "potential for improvement from the therapy but rather on the beneficiary's need for skilled care," the Jimmo settlement said. [...]

Medicare's proposals include such educational efforts and a special webpage with "frequently asked questions" spelling out the proper procedures for handling claims. The government would also issue a clear statement confirming that Medicare covers physical, speech and occupational therapy along with skilled care at home, and in other settings, even if the patient has "reached a plateau" — a term seniors still hear — and isn't improving.

Attorneys for the seniors want to monitor how Medicare officials implement these new measures and have offered to write the policy statement disavowing what's known as the "improvement standard." They also want the government to repeat its 2013 conference call with providers, contractors and others involved in the process in order to correct mistakes, according to papers filed with the court Jan. 13. [...]

Two Area Nursing Homes Were Sold: One Got Better, the Other Got Worse

Recent ownership changes at two large nursing homes in the heart of the Upper Valley have had opposite effects on the conditions and quality of care for dozens of residents, according to observations and ratings from regulators and advocates.

Brookside Health and Rehabilitation, a 67-bed facility in White River Junction, has seen its overall rating by Medicare fall from five stars to two stars since August 2015, when it was purchased by a New York-based group of real estate investors and nursing home operators.

Five stars indicate a “much above average” rating, while two stars indicate “below average,” according to the U.S. Centers for Medicare and Medicaid Services, which awards the stars using data from state inspections and reports from nursing home operators.

“They appear to be on a downward path,” said Eric Avildsen, executive director of Vermont Legal Aid, which operates the state’s Long Term Care Ombudsman program. Problems showed up in Brookside’s last relicensing inspection, he said: “We’re taking it pretty seriously.”

Last year the ombudsman conducted five cases and received 14 complaints against Brookside, which Avildsen termed “a relatively high number.” [...]

While the state ombudsmen don’t currently have an individual client who has an open complaint against Brookside, Avildsen said, they are aware that there have been significant problems and a number of residents have been in touch “informally” about staffing and care quality problems.

Brookside’s fall to its current two-star overall rating resulted from health inspections that left it with only one star in that category. Star ratings are primarily based on the results of health inspections by state officials, but also reflect adjustments for staffing numbers and health care services and outcomes reported by facilities. [...]

With Uncertainty in Congress, Scott Administration Holds on Major Health Care Changes

During his gubernatorial campaign, Gov. Phil Scott said that if he was elected, he would move to eliminate Vermont's health care exchange and bring the state into the federal system. But just three weeks into his term, the message from his administration has changed dramatically.

That's because while it's likely that the Republican Congress in Washington will vote to repeal the Affordable Care Act, there's no consensus on how to replace it.

Human Services Secretary Al Gobeille says it makes no sense for Vermont to implement major reforms without knowing what Congress is going to do.

“I think we're talking about something that is a really, really lengthy planning and execution process if you're going to change,” said Gobeille. “You wouldn't want to do that and then have it disrupted by Washington, so we're going to keep doing what we're doing for now."

In the meantime, the Scott Administration is taking steps to reduce the number of Vermonters who purchase their coverage on the exchange. They're going to require that all individuals who don't qualify for Medicaid or state premium assistance purchase their coverage directly from the insurance companies. [...] 

Michael Fisher, the chief health care advocate for the state of Vermont, supports the administration's decision to take a wait-and-see approach with the future of health care in the state.

"There's so much uncertainty on the federal level, it's hard to imagine how we on the state level, how the administration could possibly predict at this moment how to make changes in access to health care," said Fisher.

Fisher is concerned that some of the people who will now be required to buy their coverage directly from the insurance companies might develop problems if their income drops during the course of the year. He wants to be certain that these individuals will still be able to qualify for state subsides if this happens.

Fisher is also concerned about proposals being discussed in Washington that would transfer funding for the Medicaid program into a state block grant. This approach would give states more flexibility in using Medicaid funds, but it would also cap how much a state could receive in any given year even if enrollment increased.

"Often the term 'block grant' is used as a euphemism for reduction in federal participation, and that would obviously be very concerning for us who are fighting to maintain the affordability of care,” said Fisher.

Fisher says his office is fielding numerous calls from Vermonters who are concerned that changes in federal health care policies will limit their coverage in the future.

Burlington debates a kinder way to tackle evictions

One city councilor thinks Burlington can do more to support public housing tenants on the brink of eviction, but those operating the buildings say they already follow procedures to help troubled residents remain housed.

The North District's Dave Hartnett is pushing for the creation of a task force to study the issue. Specifically, Hartnett wants to examine what happens when Burlington Housing Authority, Cathedral Square and Champlain Housing Trust decide to terminate a lease.

"Right now, I think we've identified that we do have somewhat of a little crisis in Burlington with people living in public housing that deal with some mental health crises," he said in early January.

The decision to evict someone from subsidized housing is a serious one, said Jessica Radbord, a Legal Aid attorney who often represents tenants in evictions cases. She said those who lose housing often end up in the city's overburdened shelters, seeking hotel vouchers from the state or simply sleeping outdoors.

Hartnett hopes to avoid another case like that of Ralph "Phil" Grenon, whom city police ftally shot during a standoff in March 2016. Police said the 76-year-old was threatening self-harm and was facing eviction from his South Square apartment due to his long history of making threats to other residents and the staff of Burlington Housing Authority, which operates that building. Grenon was killed after he threatened police with a knife when they entered his apartment for a welfare check.

Hartnett and Councilors Sara Giannoni and Selene Colburn, who sit on the public safety committee, met with representatives of public housing organizations in early January to discuss Hartnett's initiative. The housing authority representatives — including Sarah Russell, who runs the housing retention team at Burlington Housing Authority — detailed the process they go through for terminating leases.

The goal of the housing retention team, Russell said, is to keep residents in their homes. They are well aware that losing subsidized housing can lead to homelessness and the housing retention team offers many chances for troubled tenants to come into compliance with their leases, Russell said.

There's a difference between an eviction and a termination, she said. An eviction is a court proceeding. If a judge rules in favor of the Burlington Housing Authority, the tenant has a set amount of time to vacate the apartment before law enforcement escorts the resident off the property. However, in advance of involving the courts, housing agencies send a termination letter that notifies the resident that their lease will be broken.

Most terminations never make it to court, Russell said. Rather, they get resolved in informal hearings, where the tenant and their support team create a plan to avoid the problems that got the tenant into termination proceedings in the first place.

Grenon's eviction case had yet to make it to court at the time of his fatal encounter with police. The Burlington Free Press did not find an eviction case for Grenon, and Lt. Dan Gammelin of the Chittenden County Sheriff's Office said the case had never reached his office. Russell declined to talk about Grenon's case, citing client confidentiality.

Generally, Russell said Burlington Housing Authority is still willing to work things out with the tenants, even after a case moves to court.

Earlier this month, lawyer William Dysart of Vermont Legal Aid's Senior Citizens Project staved off the eviction of his client  Andrew Cushing from South Square, the same Burlington Housing Authority-operated building where Grenon died last March. Cushing, a disabled elderly resident, lives on $800 per month and was facing eviction proceedings for nonpayment of rent.

Cushing's case demonstrates how long the eviction process can take. Burlington Housing Authority officials first sent a letter informing Cushing of the intention to terminate his lease seven months prior to his court trial Jan. 13.

Dysart said his client was able to gather the money to pay back rent, plus fees, through help from some family and some community groups, including the Committee on Temporary Shelter.

Dysart said the agencies are usually willing to work out a payment plan, at least the first time a tenant falls behind on rent.

Despite some hiccups with Cushing's case — like asking him to pay fees that totaled more than his $232.00 monthly rent — Dysart said he finds the agencies to be even-handed. Still, he said facing an eviction proceeding in court can be be anxiety-inducing for his elderly clients, which can exacerbate health issues.

Even after hearing from the agencies about their procedures, Hartnett has pressed forward with efforts to form a task force, which he expects to come before the full City Council on Monday. The task force will include representatives from the housing agencies, Legal Aid attorneys, mental health professionals and public housing tenants.

Hartnett said he was particularly focused on the way the agency had notified Grenon his lease was terminated. In an early meeting after Grenon's death, he said, it came out that the agency had left a letter on Grenon's door because he wasn't home.

​"There has to be a better delivery of that notice," Hartnett said.

Russell said the Burlington Housing Authority complies with Vermont state law in delivering the termination letters. The notices are either mailed via first class or certified mail or occasionally hand-delivered.

At the time of Hartnett's meeting with the housing agencies, Russell said the Burlington Housing Authority had nine open eviction cases. But Russell said the agency did not keep precise data on how many terminations ended in evictions, and how many evictions are averted.

Leaders from Committee for Temporary Shelter has been pushing for better oversight.

"We want organizations that receive public funding to track evictions to create a baseline for analyzing eviction data," said Becky Holt, a spokeswoman for the nonprofit.

Analyzing the data could create insights into underlying causes, Holt said.

The sheriff's office is responsible for serving notices of evictions to tenants, and enforcing the orders to vacate once the court has ruled. Lt. Gammelin, whose office serves eviction notices and then sees that a legal decision is enforced, estimated that less than half of the cases that went to court in the housing authorities ended in an actual eviction. By comparison, he said, almost all of the cases brought by private landlords end in actual evictions. He estimated the annual number of evictions from private housing to be in the hundreds versus about a dozen from public housing.

The housing authorities said the task force would offer them an opportunity to share their experience in keeping people housed and discuss the greater mental health issues facing the agencies and the city.

With more resources, Russell said, her housing retention team could become a resource for the greater Burlington community to turn to, including private landlords.

For now, Hartnett said, he wants to stay focused on the public housing agencies.

"It's public housing," he said. "We have a responsibility to the people who live there."

Outlook: Vermont on the brink of an Affordable Care Act repeal

With an Affordable Care Act repeal on the horizon, Vermont’s leaders are trying to predict the future amid changing messages coming from Washington.

“People want certainty, and there isn’t any,” state Sen. Jane Kitchel, D-Caledonia, chair of the Senate Committee on Appropriations, told Watchdog. “One day, [Trump] is talking about repealing the ACA, and then he says he wants to provide coverage for everyone. At this point, all we can do is track the situation closely.”

According to the George-Soros-funded Center on Budget and Policy Priorities, Vermont is poised to lose $3 billion in federal funding over the next 10 years if the law is repealed. Moreover, 35,000 Vermonters stand to lose insurance coverage....

While Vermont operates a state health care exchange, the state is intricately connected to the ACA through Medicaid.

Sarah Lueck, senior policy analyst at the Center on Budget and Policy Priorities, a progressive think-tank focused on policies that impact low-income Americans, told Watchdog that each state will have to evaluate the greatest areas of need based off of individual demographics. In Vermont, that demographic is likely to be low-middle-class Medicaid users.

Vermont has the most expansive Medicaid coverage of any state. The ACA expanded eligibility for low-income adults, but Vermont also negotiated a global commitment waiver with the federal Centers for Medicaid and Medicare Services. The waiver further expanded Medicaid coverage by allowing the state to determine wider eligibility and finance programs like the Blueprint for Health.

Because Medicaid is so expansive in Vermont, certain brackets of beneficiaries are likely to face cuts. ...

Republicans have proposed dramatic changes to Medicaid structure, such as giving states control through block grants. Past Republican budget proposals have also included a per-capita spending cap intended to reduce spending by $1 trillion over 10 years. Critics say the funding reductions will hurt states’ abilities to continue with innovative health programs, such as Vermont’s Medicaid waiver. [...]

Michael Fisher, chief health care advocate at Vermont Legal Aid, a nonprofit law firm created by the Legislature protect Vermont consumers, said his office is ready for whatever plan Republicans present. “We will work with every fiber of our beings to make sure we have improved access to care,” he told Watchdog. [...]

Fisher encourages Vermonters to contact state and federal representatives if they are concerned about their health care. Since no one knows the future, elected officials need to know “what does the average Vermonter feel.”

The Shumlin Legacy: A governor who wasn’t afraid to think big the start of the 2013 session, Gov. Shumlin ... proposed shifting money from the Earned Income Tax Credit to child care subsidies... Christopher Curtis, an attorney with Vermont Legal Aid, led the fight against the proposal, which the governor dropped several days later.

“I think Peter Shumlin really listened and learned on the job. I went from being pretty critical of the administration on some of these early calls and early challenges” to supporting the governor’s poverty-reduction efforts. Curtis praised Shumlin’s decision, after the policy misstep, to form a poverty council on which Curtis serves to get more input on ideas.

Curtis had mixed feelings about Shumlin’s overall efforts to help low-income people. He praised the administration’s work immediately after assuming office.

“They deserve a lot of credit for really maximizing the monies that were available to help take what could have been a precarious recovery that could have gone backwards and really help stabilize the situation for many thousands and thousands of people,” he said.

On spending, Curtis said Shumlin and lawmakers operated with a “budgetary straightjacket” and that there was too much reluctance to discuss raising taxes.

“We’ve been fighting budget battles with one hand tied behind our back for a long time. We’ve had 40 years in this country of people saying public investment is bad, taxes are bad, without a robust discussion,” he said. “Part of the deal with a social contract is that we do together as a community what we can’t do individually.”

Can poverty be eradicated? Chris Curtis on the enduring challenge

Christopher Curtis, staff attorney at Vermont Legal Aid and co-chair of the Governor’s Council on Pathways from Poverty, has dedicated his life to eradicating poverty. Though he has never held elected office, Curtis has been the force behind many key policy changes made on behalf of low-income Vermonters. [In this recording of an interview that was first broadcast on December 14, 2016], he discusses the final report of the Governor’s Council, his life, and why he keeps fighting for the poor. Whitney Nichols joins the conversation to talk about his experience being homeless in Vermont and his work with Curtis on the Governor’s Poverty Council.

Listen to the interview

Change In Vt. Medicaid Policy Could Improve Access To Live-Saving Hepatitis C Treatment

A change in Vermont’s Medicaid policy could soon deliver potentially life-saving treatment to many low-income patients with hepatitis C. But the reform won’t come cheap, and even with the changes, many patients still won’t have access to the costly cure. ...

But last week, the state’s Drug Utilization Review Board voted to change the policy. And the drugs will now be available to people with damage scores of F2 or worse. The policy previously reserved treatment only for patients with scores of F3 and F4, which denotes severe liver damage.

“A score of F2 indicates that the liver ... there already is some damage beginning there, but it is less severe damage than Medicaid had required previously,” says Julia Shaw, a policy analyst with the Office of the Health Care Advocate.

Shaw’s office had also been pushing the board to lift a requirement that patients be drug- and alcohol-free for six months prior to receiving treatment. Shaw says there’s no medical evidence that even injection drug users suffer higher rates of re-infection than people who remain abstinent.

The board agreed.

Steven Costantino, commissioner of the Department of Vermont Health Access, says he’ll take steps to institute the reforms voted on by the board.

Advisory board urges expanded access to hepatitis C drugs

An advisory board says the state should make it easier for Vermont’s Medicaid patients to get access to expensive prescription drugs that treat hepatitis C. ...

The vote follows more than a year of advocacy from a coalition of organizations led by Vermont Legal Aid’s Office of the Health Care Advocate. The coalition includes the American Civil Liberties Union of Vermont, the Prisoners’ Rights Office and the Vermont People with AIDS Coalition. ...

Julia Shaw, a policy analyst for the Office of the Health Care Advocate, said the state and society in general are tolerating limits on treatment for people with hepatitis C because the disease still carries a stigma. ...

From our perspective, we don’t punish people for their other behaviors,” Shaw said. “We don’t withhold treatment for lung cancer because someone smokes, or we don’t withhold treatment for diabetes because somebody didn’t eat right or didn’t exercise.”

“I don’t think people would tolerate this type of rationing of medication based on the cost for cancer — pretty much for everything else,” Shaw said. “The only explanation is because it’s a stigmatized disease.”

5 questions facing Phil Scott and the new Legislature

Gov.-elect Phil Scott didn't hesitate on Monday when a reporter asked him his greatest challenge these days. "Lack of time," Scott said. ...

Workers in Vermont will soon begin to earn paid sick time under a state law that takes effect January 1. Many of the groups that pushed for the new sick time law are already preparing to ask for another family-friendly policy: paid family and medical leave.

The coalition, which includes Main Street Alliance, Voices for Vermont's Children, the Vermont-NEA and Vermont Legal Aid and AARP-VT, argues that Vermont employees should be eligible for paid time off when they have a child, or when they are going through a major medical event. Other states have a version of this insurance program, funded by the employee or by a combination of the employer and employee.