Model Comment Letter on Medicaid Access Rule

Background and Instructions

HHAC and NAHC encourage our members to submit comments on the proposed Medicaid Access Rule. This rule includes a wide range of changes to Medicaid-funded homecare and, most importantly, includes a provision that would require 80% of all Medicaid payments for personal care, home health aide, and homemaker services to be spent on compensation to direct care workers. NAHC is strongly opposed to this provision and hopes that CMS reverses course on this aspect of the rule.

The deadline for submitting comments is July 3rd.

If you have any questions or require assistance with submitting comments, please contact Damon Terzaghi, NAHC’s Director of Medicaid Advocacy, at [email protected].

Helpful links

• The full rule is available at: https://www.federalregister.gov/documents/2023/05/03/2023-08959/medicaid-program-ensuring-access-to-medicaid-services

• The NAHC Summary and Analysis is available at: https://report.nahc.org/nahc-analysis-new-proposed-cms-medicaid-access-rule/

• A recorded NAHC webinar explaining key components of the rule is available at: https://vimeo.com/825656092

• Comments may be submitted online at: https://www.regulations.gov/commenton/CMS-2023-0070-0001

Suggestions for Writing Comments

CMS gives specific weight to individualized comments instead of form-letters, so we strongly encourage you to personalize your message. According to the Regulations.gov commenting tips, “A single, well-supported comment may carry more weight than a thousand form letters.”

Additional recommendations from Regulations.gov include:

• Read and understand the regulatory document you are commenting on
• Feel free to reach out to the agency with questions
• Be concise but support your claims
• Base your justification on sound reasoning, scientific evidence, and/or how you will be impacted
• Address trade-offs and opposing views in your comment
• There is no minimum or maximum length for an effective comment

Below, we provide a suggested format and topics to stress, and we also highlight areas that can be elaborated upon or strengthened with your own personal and organizational perspective. There is no “one way” to submit comments; however, we recommend that you include specific information and data about the impact of the rule wherever possible. Overall, the most important thing you can do is to tell your story and explain how the proposed changes would be detrimental both to your employees and the people you serve.

We also encourage you to change the format of the document below to match your usual style. This can include adding your own letterhead, changing fonts, or doing other cosmetic changes to show that it is reflective of your own organization.

Submitting the Comments

When you are ready to submit your comments, we recommend that you:

• Double check for errors, typos, and lingering issues that may come from editing the template.
• Remove all of the instructions pages and areas highlighted in the document.
• Include your own signature, title, organization, and date.
• Save the document as a PDF.

To formally submit your comments:

• Go to: https://www.regulations.gov/commenton/CMS-2023-0070-0001
• In the box titled “Comment,” enter “Please see attached document.”
• Upload your PDF document to the site.
• Provide your e-mail address.
• Select “an Organization” from the “tell us about yourself” options.
• Make sure to check the “I am not a robot box.”
• Hit submit.

After Submission

Please send a copy of your comment letter to Damon Terzaghi, NAHC’s Director of Medicaid Advocacy, at [email protected].

Click for customizable form letter

Third Try’s the Charm? National Labor Relations Board (Again) Narrows Definition of “Independent Contractor” Under the National Labor Relations Act

By Jim Paretti, Fred Miner, and David Ostern

On June 13, 2023, the National Labor Relations Board (“NLRB” or “the Board”) issued its long-awaited decision in The Atlanta Opera,¹ in which it overturned prior law (SuperShuttle DFW, Inc.) and reinstated a narrower test for “independent contractor” (as opposed to “employee”) under the National Labor Relations Act (“NLRA” or “the Act”). As a practical matter, this means that more workers are likely to be classified as employees—who, unlike independent contractors, are permitted to form and join a union, and otherwise enjoy the workplace protections of the Act—than under prior law. The decision is not wholly surprising, insofar as NLRB General Counsel Jennifer Abruzzo announced early in her tenure that convincing the Board to overturn SuperShuttle was among her top priorities. The Atlanta Opera was approved three to one, with the Board’s single Republican member concurring in the result of the case but dissenting from the Board’s analysis and overruling of prior precedent.

In The Atlanta Opera, the Board reinstated the common-law agency test for determining worker status found in the Restatement (Second) of Agency §220.  Under that test, the Board looks at the following factors, assessing and weighing them, with no one factor being decisive:

• The extent of control, which by agreement, the employer may exercise over the details of the work.
• Whether or not the one employed is engaged in a distinct occupation or business.
• The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
• The skill required in the particular occupation.
• Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work.
• The length of time for which the person is employed.
• The method of payment, whether by the time or by the job.
• Whether or not the work is part of the regular business of the employer.
• Whether or not the parties believe they are creating the relation of master and servant.
• Whether the principal is or is not in business.

Applying this test, the Board concluded that subject makeup artists and hairstylists working for the Atlanta Opera were employees, not independent contractors. The Atlanta Opera marks another chapter in a 16+ year saga concerning the definition of independent contractor under the Act, which has already twice gone to the U.S. Court of Appeals for the District of Columbia Circuit, and seems destined to make a third visit.

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How Hospice Eligibility Criteria Can Adversely Affect Dementia Patients

A growing number of patients with various dementia-related conditions will need end-of-life care in coming years. Hospices preparing for rising demand are facing compliance challenges, as these patients often require longer hospice stays.

Patients with Alzheimer’s and other neurological degenerative disorders have health trajectories that are difficult to project, especially as they approach the end of life, according to Dr. Neha Kramer, palliative neurologist at Rush University Medical Center in Chicago.

Many of these patients could benefit from receiving hospice care sooner and longer, but regulatory requirements can make that a challenging feat for providers, she said.

“Some of the greatest challenges providing quality hospice care to these patients really starts because the Medicare guidelines and eligibility criteria for neurodegenerative diseases really leaves a lot left to be desired,” Kramer told Hospice News. “There’s a big call to reconfigure the hospice benefit so that it’s really tied into the goals and needs of these patients, rather than a prognostication piece that doesn’t feel accurate for so many conditions. They could still benefit from hospice services earlier in their disease course, and for a much longer time.”

Kramer is also an assistant professor at Rush University’s Department of Internal Medicine and past co-chair of the American Academy of Hospice and Palliative Medicine’s (AAHPM) Neuropalliative Special Interest Group. She co-founded the group roughly five years ago with colleagues in the subspecialty.

A wide variety of neurodegenerative and neurologic diseases exist among hospice and palliative patients.

Alzheimer’s is among the most common types of dementia in these patient populations, according to Kramer. Others include vascular dementia, Lewy body dementia (LBD) and frontotemporal dementia.

Neurodegenerative disorders like Huntington’s and Parkinson’s disease are also common, as well as related disorders like amyotrophic lateral sclerosis (ALS), multiple system atrophy (MSA) and progressive supranuclear palsy, she stated.

Seniors with Alzheimer’s and other neurological degenerative disorders will represent a larger portion of the hospice and palliative patient population in the next two decades.

About 1 in 9 seniors will have a dementia-related condition by 2050, representing roughly three-quarters (73%) of the nation’s overall aging population, according to a 2023 report from the Alzheimer’s Association.

A projected 12.7 million Americans 65 and older will have Alzheimer’s or other dementias by then, nearly double the current estimated 6.7 million seniors with these conditions, according to the report.

“With this proliferation comes an increased need for competent, high-quality hospice and palliative health care for patients with Alzheimer’s and other degenerative brain diseases,” Alzheimer’s Association researchers wrote in the report.

Current regulations around hospice eligibility are among the barriers to improving quality end-of-life care for patients with dementia-related conditions, according to Kramer.

Disease variability alongside increasing patient volume is only adding to pressures on hospices to meet unique care needs, such as longer stays that often extend beyond the six month parameters around the Medicare eligibility criteria, she said.

“Hospice has its own criteria, but these diseases don’t progress in the same linear fashion. So, they don’t really fit into that criteria,” Kramer said. “It just doesn’t accurately depict how much time a person has and doesn’t accurately affect the needs of the neurodegenerative population.”

Both policymakers and providers are recognizing potential opportunities to reform the Medicare Hospice Benefit to better meet diverse patient needs.

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CMS and NAMD Issue Statements on Medicaid Unwinding

NAHC

On June 12^th, the Centers for Medicare and Medicaid Services (CMS) released a letter and accompanying materials to Governors, stressing concerns with the initial loss of Medicaid eligibility detailed in state unwinding reports. As the Medicaid program returns to normal operations and initiates redeterminations of members, data indicates that a large number of enrollees are uncertain of the unwinding process and whether their state will be returning to normal operations.

Similarly, CMS expresses concerns about a large number of “procedural disenrollments,” which involve an individual losing Medicaid due to lack of response or failure to return paperwork rather than due to no longer meeting eligibility requirements. In the letter, CMS urges Medicaid agencies to work with partners to ensure that people are aware of the redetermination process in their state and that they have access to any assistance needed to complete the paperwork.

In response, the National Association of Medicaid Directors issued a statement acknowledging the concerns about coverage loss and general lack of awareness regarding the return to normal operations. NAMD’s statement includes a request for assistance to help maintain enrollment for eligible individuals from managed care plans, community organizations, advocates, providers, and other individuals and organizations with interest in Medicaid.

NAHC encourages our members to engage with their state Medicaid offices to collaborate and ensure that your clients are supported and able to remain on the Medicaid program.