From DC: Medicare Dental Coverage Expanded, Federal Court Reinstates Medicaid Coverage for Plaintiffs, and more

Here’s what we’re watching in Washington:

CMS Finalizes Two Significant Rules Improving Medicare Access and Coverage

Last week, the Centers for Medicare & Medicaid Services (CMS) finalized provisions of the Beneficiary Enrollment Notification and Eligibility Act (BENES) Act. Beginning in January 2023, the rule establishes several new special enrollment periods (SEPs) that allow individuals to enroll in Medicare Part B without penalty if they missed their initial enrollment due to exceptional circumstances, including: a government-declared disaster or emergency; termination of Medicaid coverage; an employer or health plan error; and release from incarceration. Also, effective January 2023, Medicare coverage will begin the month following enrollment in all circumstances. Read more about these changes and others in CMS’s summary and the final published rule.

Last week, CMS also finalized the 2023 Physician Payment Schedule to clarify when Medicare will pay for dental services integral to covered medical services. Starting in 2023, Medicare will cover dental services necessary to treat infections prior to or contemporaneous with an organ transplant, cardiac valve replacement, and valvuloplasty procedures; and for head and neck cancers starting in 2024. CMS is also establishing an annual process seeking public input to determine whether there are other circumstances when payment for dental services should be allowed. Read more in CMS’s factsheet.

Stay tuned for additional resources from Justice in Aging on these two new rules in the coming months.

Court Grants Preliminary Injunction in Carr v. Becerra; Orders Medicaid Coverage be Reinstated

This week, the Federal District Court in Carr v. Becerra granted a preliminary injunction on behalf of the five named plaintiffs who had their Medicaid coverage terminated during the COVID-19 public health emergency. This lawsuit arises out of an interim final rule issued by the Trump Administration in 2020 that failed to consider the numerous comments submitted in opposition to the rule and has caused hundreds of thousands of older adults, people with disabilities, and others to lose access to critical Medicaid benefits during the pandemic. The Court orders Defendant Becerra, Secretary of the U.S. Department of Health and Human Services (HHS), to stop enforcing the interim final rule with respect to the five named plaintiffs and to notify the relevant state Medicaid agencies so the named plaintiffs can obtain needed Medicaid benefits.

CMS Loosens Enforcement of Nursing Facility Staff COVID Vaccination Requirements

The Centers for Medicare & Medicaid Services (CMS) recently announced lessened penalties for a facility’s violation of staff COVID vaccination requirements. Federal law requires vaccination for all nursing facility staff members who care for residents, except for staff with religious or medication exemptions. Under the change, violations will be cited at severity level one, which results in no penalty other than the facility submitting a plan of correction. Violations may be cited at level two, which would authorize stronger enforcement remedies only in cases of “egregious noncompliance.” For such egregiousness, CMS gives examples of a facility with only half of its staff vaccinated or a facility with no vaccination policies.

HHS Received Over 7,000 Comments on Proposed Rule to Streamline Medicaid

The public comment period on the Biden Administration’s proposed changes to streamline Medicaid and improve Medicaid enrollment and retention for older adults and people with disabilities closed on Monday with more than 7,000 comments submitted. Justice in Aging wrote extensive comments supporting the provisions aimed at improving enrollment in Medicare Savings Programs, addressing the institutional bias, and helping older adults and people with disabilities retain coverage.

Read Justice in Aging’s comments.

Notice to All Potential Class Members in the Medicare “Observation Status” Case

In Alexander v. Becerra, Justice in Aging, Center for Medicare Advocacy, and pro bono firm Wilson Sonsini Goodrich and Rosati represent a class of Medicare beneficiaries whose hospital status was changed from “inpatient” to “observation status” and had no opportunity to appeal to Medicare. Earlier this year, the District Court of Connecticut held that a national class of plaintiffs can appeal to CMS when their hospital stay classifications are changed to observation status. As part of implementing the ruling, the parties asked the Court to clarify how Medicare can address certain retrospective claims. The Court ordered the parties to notify potential class members of the proposed clarification and to provide the class with the opportunity to submit comments and questions. Any comments and questions are due by November 25. A copy of the notice and additional information about the parties’ proposed clarification is available on our website.

New Justice in Aging Resources

Upcoming Justice in Aging Webinar

Justice in Aging Webinar Recording

New & Updated Federal Resources

Other New Resources

Status of State Medicaid Expansion Decisions: Interactive Map, Kaiser Family Foundation
LTSS Choices: Increasing Independent Living Choices through Coordinating Affordable Housing and Medicaid: Housing as an Indicator in the 2020 Long-Term Services and Supports State Scorecard, AARP Public Policy Institute
Integrating Medicare And Medicaid Data To Improve Care Quality And Advance Health Equity Among Dual-Eligible Beneficiaries, Health Affairs
2022 State of Grandfamilies Report, Generations United

Stay up-to-date on Justice in Aging’s COVID-19 Resources for Advocates Serving Older Adults webpage.