September 4, 2024
1) The NYS Council vigorously supports efforts to extend Medicare coverage to thousands of primarily Black New Yorkers who leave carceral settings without access to affordable health care options. To demonstrate our support we recently signed on to a letter circulated by the Legal Action Center in support of this rule change. Your agency can sign on to the letter (by tomorrow September 5) by following the instructions here:
Sign-On Letter to support Medicare access for people reentering the community from incarceration
- The letter is pasted at the bottom of this email, and it is also linked in the google form.
- Sign on by completing this google form by Thursday, September 5, 2024.
Medicare rule change could extend coverage to thousands of formerly incarcerated New Yorkers
Ethan Geringer-SametH, Crain’s Health Pulse, 9/4
A quietly proposed rule change would extend Medicare coverage to thousands of disproportionately Black New Yorkers who leave prison and jail without access to the affordable health care option.
In July, the Centers for Medicare and Medicaid Services proposed to narrow the definition of “custody” under Medicare rules to no longer include individuals on parole, probation and other forms of community supervision. If approved, the change would extend Medicare to more than 340,000 people over the age of 65 who are on probation or parole nationally, including thousands of seniors in New York State.
The rule change, which was submitted as part of an annual compendium of proposed rate amendments, would also enable coverage for people over 65 who are out on bail or under house arrest, and to people who would otherwise qualify for Medicare because of a disability, according to Washington, D.C.-based Legal Action Center, which backed the change.
Because of the technicality, individuals currently under community supervision may have been able to enroll in Medicare, but not use it to pay for their care.
The exclusion has so far meant seniors and people with disabilities who reenter society are often forced to pay out of pocket or fall into a gap of treatment. To cover the deficits of state-licensed providers, which are legally mandated to provide treatment regardless of ability to pay, New York State is on the hook for hundreds of millions of dollars or more annually.
Roughly half of the 19,000 New Yorkers on parole in 2022 were Black, and 2,400 were over 60, according to a report from the state Department of Corrections and Community Supervision, many of whom would qualify for Medicare due to their age if the definition were narrowed. That doesn’t include the number of seniors and people with disabilities on probation, bail and other forms of community supervision who would become eligible under the amendment.The rule has been especially devastating for the disproportionately high number of people reentering society with a substance use disorder, already at a higher risk of relapse and overdose, who often lose access to medication or counseling upon gaining their freedom.“It’s like being in a purgatory state,” said Anthony Dixon, deputy director of the Parole Preparation Project, a Flatiron-based reentry services provider, who was once incarcerated. Often, he said, people reentering with chronic diseases or substance use disorder face the herculean task of finding a job with health benefits before they can address their health needs.In New York, the state Office of Addiction Services and Supports distributes more than $500 million a year in state aid to substance use providers who run a net deficit, according to spokesman Evan Frost. It is the primary way providers pay for the cost of treatment when third-party insurance, grants and other private sources do not fully cover the cost of care.For people who are dually eligible, Medicaid may deny claims because a person is enrolled in Medicare even if Medicare is not paying for care, according to Deborah Steinberg, a senior health policy attorney at Legal Action CenterLong Island City-based Phoenix House New York, a residential and outpatient substance use and mental health provider serving 2,400 people annually, received $9.6 million from the state Office of Addiction Services and Supports and another $3.2 million from the Office of Mental Health in the current fiscal year, according to president and CEO Ann-Marie Foster. That money covers people who are underinsured or who can’t get a Medicaid-managed care plan or another form of insurance, she said.“It’s like having a baby and knowing the baby is going to need care and you have no access to a pediatrician,” Foster said.The Centers for Medicare and Medicaid Services expect the change to have a “negligible impact” on Medicare costs because it allows formerly incarcerated individuals to “more easily access the Medicare benefits for which they are legally entitled,” according to the proposed rule.A coalition of advocacy groups, including Legal Action Center, is now asking parts of the amendment related to the special enrollment period to apply retroactively to people released in 2023. The groups also want to see the term “arrest” removed from the definition of custody because it could apply to people on bail and pretrial release.The public comment period on the rule closes on September 9. If approved, the changes will go into effect on January 1. While most rules are approved as proposed, there may be minor adjustments based on questions the federal government solicited from experts, according to Steinberg of Legal Action Center.
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2) Caring for the Vulnerable: Mental Health
City & State, 9/3* In a new special report, Caring for the Vulnerable: Mental Health, City & State examines Gov. Kathy Hochul’s historic $1 billion plan to transform the state’s mental health system. The influx of funding has bolstered a sector that has languished with insufficient support.
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3) Specter of strict DEA prescribing rule rattles telehealth sector
Bridget Early Gabriel Perna Modern Healthcare, 9/4 Telehealth industry and mental health groups are scrambling amid fears the Drug Enforcement Administration is poised to place strict limits on remote prescribing of controlled substances such as Adderall and Vicodin.
The legal authority for clinicians to prescribe DEA-regulated medications through platforms such as Talkiatry expires in less than four months, and the law enforcement agency has moved slowly to issue a final rule after the draft version released last year triggered protests from providers and telehealth companies.
Anxiety among telehealth stakeholders soared last Wednesday, when Politico Pro reported the DEA intends to produce a regulation that would narrow the list of drugs that remote providers can prescribe and require them to verify that patients aren’t seeking medicines to misuse them. That report is unconfirmed and was attributed to an unnamed former DEA official.
According to Politico Pro, the DEA is planning to impose tighter restrictions on providers who remotely prescribe Schedule II drugs such as Vicodin, OxyContin, Adderall and Ritalin and end remote prescribing of Schedule III-V drugs such as codeine, Xanax and Ambien. The agency would also limit providers to remotely prescribing only 50% of their total prescriptions, the publication reported.
The DEA did not respond to a request for comment.
The American Telemedicine Association and allied organizations are now calling on the White House to pressure the DEA to extend the current remote prescribing flexibilities, which emerged during the COVID-19 pandemic, for another two years and are asking Congress to step in.
The Alliance for Connected Care is seeking signatories to letters endorsing a two-year extension, which it intends to deliver to White House Domestic Policy Council Director Neera Tanden, House Speaker Mike Johnson (R-La.), House Minority Leader Hakeem Jeffries (D-N.Y.), Senate Majority Leader Chuck Schumer (D-N.Y.) and Senate Minority Leader Mitch McConnell (R-Ky.).
“Millions of Americans will lose access to critically important mental health care treatment on December 31, 2024, unless the administration acts. We need your leadership to ensure that the Drug Enforcement Agency (DEA) [sic] preserves this access,” the letter to Tanden says. The letter to the legislative leaders says, “We urge you to include, in the end-of-year legislative package, a two-year extension of prescribing flexibilities.”
Sen. Mark Warner (D-Va.), a former information technology executive, pounced on the Politico Pro report to criticize the DEA.
“We don’t need an arbitrary new set of regulations — we just need DEA to set up the minimum training requirements for providers and a special registration that allows the DEA to do its job to monitor telemedicine prescribing of these medications and catch bad actors,” Warner said in a news release last Wednesday.
The DEA’s mission is to stem the proliferation of drugs of abuse, which can be at odds with the needs of healthcare providers, patients and telehealth vendors. The agency has a mandate to limit access to controlled substances but was also tasked with updating its rules to facilitate convenient access to medicines to treat mental health conditions, pain and other ailments, especially for people who live in areas with few providers.
Moreover, some in the telehealth space have lent credence to a restrictive approach to remote prescribing.
For instance, the Justice Department is prosecuting two top executives from the digital behavioral health company Done on charges that the company knowingly prescribed Adderall to patients who did not have attention-deficit/hyperactivity disorder. According to an indictment issued in June, Done founder and CEO Ruthia He and Clinical President Dr. David Brody oversaw a $100 million Adderall distribution and healthcare fraud scheme. ADHD medications such as Adderall and Ritalin are often used recreationally.
But Dr. Shabana Khan, chair of the American Psychiatric Association’s committee on telepsychiatry, said telemedicine prescribing flexibilities have benefited patients without access to nearby mental health providers. The potential for a restrictive rule raises massive concerns for care, she said.
Eric Triana, chief compliance officer at Talkiatry and a former DEA official, said such a rule could force providers into hybrid business models. Aspects of the rule, as described by Politico Pro, also would be unreasonably burdensome, he said.
“I have no idea why anyone would enact such a 50% rule. That’s arbitrary, capricious, and not based on any evidence of diversion,” Triana said.
While interested parties await word from the DEA itself, they are preparing as though a restrictive regulation is coming.
For starters, providers and telemedicine companies should assess whether they meet exceptions under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which would allow them to continue remotely prescribing controlled substances, said Nathaniel Lacktman, a partner and chair of the law firm Foley & Lardner’s telemedicine and digital health industry practice.
Under the Ryan Haight Act, providers may remotely prescribe in certain circumstances, such as when patients are in hospital or clinics or Veterans Health Administration or Indian Health Service facilities, during a public health emergency declaration or as permitted by other laws and regulations, Lacktman said.
Providers that don’t quality under the Ryan Haight Act should start thinking about continuity of care for their patients, Lacktman said. Most state medical boards require providers to give at least 30 days’ notice if they can’t maintain treatment, he said. That means notices will have to start going out soon since the current policy lapses at the end of the year.
Telemedicine providers without physical locations should also consider ways to offer prescriptions in person, such as through house calls or at health fairs, Lacktman said. Providers should also start the DEA registration process, he said.
The proximity to Election Day is another complication because the DEA may seek to delay issuing a rule until campaign season is over, or even wait until a new president takes office in January, said Kyle Zebley, senior vice president of public policy for the American Telemedicine Association. That makes it even more urgent for President Joe Biden to act before the calendar turns, he said.
“This White House would argue, understandably, that they’re out there fighting and advocating for these communities, day in, day out. Well, they have a major area to act upon here in order to continue to advocate for them, because they’re going to sever the continuity of care if we don’t have a permanent, workable framework in place, come Jan. 1.”
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LAC Sign On Letter:
September 9, 2024
The Honorable Chiquita Brooks-LaSure
Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
7500 Security Boulevard
Baltimore, MD 21244-1850.
RE: Medicare and Medicaid Programs: Medicare Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems; Individuals Currently or Formerly in Custody of Penal Authorities; Revision to Medicare Special Enrollment Period for Formerly Incarcerated Individuals (CMS-1809-P)
Dear Administrator Brooks-LaSure,
Thank you for the opportunity to provide comments on the Center for Medicare & Medicaid Services’ (CMS) CY25 Medicare Outpatient Prospective Payment System proposed rule (CMS-1809-P). The undersigned XX organizations strongly support the proposal to revise Medicare’s custody definition and the Special Enrollment Period (SEP) for formerly incarcerated individuals. 42 C.F.R. §§ 411.4(b)(3), 406.27(d), 407.23(d). These modifications will advance health equity and expand access to high quality and affordable coverage and care for hundreds of thousands of older adults and people with disabilities who are living in the community under supervised release following incarceration, and will make Medicare more consistent with Medicaid and with commercial health insurance.
In 2022, there were at least 340,000 people ages 65 and older on probation and parole.[1] In addition, there are some number of individuals who meet Medicare’s current custody definition while living in the community, such as those on bail or home detention, and an additional number under age 65 who may be eligible for Medicare due to disability. Individuals in these conditions who are not currently able to access Medicare benefits but do not qualify for Medicaid could face significant health care costs, needing to either pay out-of-pocket or find other insurance. This harms individuals who must delay or forgo treatment, or who cannot access specialists. Individuals who are dually eligible for Medicare and Medicaid are also impacted if records show they are enrolled in Medicare even when Medicare isn’t paying for coverage, leading to Medicaid coverage denials. They may also need to switch providers and treatment plans upon completing parole or similar circumstances that denied them access to Medicare or the SEP.
The broad Medicare custody payment exclusion has a particularly significant impact on the ability of individuals with substance use disorders to access health care. Drug overdose death is the leading cause of death after release from prison, and studies suggest that recently incarcerated people are 10-40 times more likely to die from an overdose than the general public.[2] Approximately 65% of the United States prison population has an active substance use disorder and another 20% were under the influence of alcohol or drugs at the time of their crime.[3] When these individuals are released from the correctional facility, it is critical that they have insurance to pay for care so that they can continue substance use disorder and any other treatment they received while incarcerated or initiate medically necessary treatment. Over 4.6 million adults ages 65 and older have a substance use disorder.[4] We commend CMS for its work over the past several years to improve access to substance use disorder treatment for people with Medicare, including developing strong coverage and payment policies for opioid treatment programs, office-based substance use disorder treatment, addiction counselors, and intensive outpatient treatment. Older adults and people with disabilities who have been released from incarceration need access to these lifesaving benefits, and these proposed changes would support the Administration’s Unity Agenda to beat the overdose epidemic and CMS’s Behavioral Health Strategy.
We strongly support CMS’ proposal to narrow Medicare’s custody definition to no longer include individuals on bail, parole, probation, and home detention. The new proposed definition will promote successful reentry and community integration for people in the criminal legal system. Research has shown that health coverage and access to care, including for those with unaddressed substance use and mental health conditions, has a positive impact on recidivism. For example, a study examining the impact of the Medicaid expansion on arrest rates found that Medicaid expansion produced a 20-32% decrease in overall arrest rates in the first three years, with the largest negative differences (25-41%) for drug arrests.[5] Another study found increased access to Medicaid after incarceration led to lower re-incarceration rates, higher employment rates, and higher earnings.[6] Thus, ensuring people who are eligible for Medicare and under community supervision can enroll in and use Medicare coverage should also decrease the likelihood of re-arrest and re-incarceration.
We further support CMS’s proposal to revise the eligibility criteria for the special enrollment period (SEP) for formerly incarcerated individuals so that people under community supervision can enroll in Medicare. We respectfully request that CMS ensure that individuals who were or are released from incarceration under conditions that prevent or hinder their access the current SEP between the initial implementation of the SEP (January 1, 2023), and the effective date of this proposed rule have an opportunity to enroll in Medicare coverage as well with equitable relief, either by expressly including overlapping effective dates or by establishing an instruction for local Social Security Administration offices.
In response to CMS’s specific requests for comments, we offer the following recommendations:
· Explicit Statement: We encourage CMS to explicitly state in the regulatory text that individuals on bail, parole, probation, or home confinement are not considered to be in custody, as this would provide much needed clarity to individuals, providers, and advocates who are navigating these circumstances.
· Pre-Trial Release: We encourage CMS to remove the proposed exclusion of individuals under arrest ((§ 411.4(b)(3)(i)) as it is overly broad, insofar as it could encompass people who are on bail or pre-trial release and whose services are not covered or provided by a carceral setting. To the extent that the population CMS is trying to exclude are those that are confined to jail, that population is already represented in the § 411.4(b)(3)(ii).
· Halfway Houses: We encourage CMS to adopt Medicaid’s interpretation and approach to individuals residing in halfway houses. If individuals have “freedom of movement,”[7] they should be entitled to have Medicare pay for their care.
Thank you for your commitment to advancing health equity and expanding access to quality and affordable care for individuals who are reentering and living in the community following incarceration.
Since
[1] 2022 National Survey on Drug Use and Health (NSDUH). Of the 3,251,000 people who reported being on probation in the past 12 months, 198,000 were 65+ years old (6%) (Source: NSDUH, 2022: PROB x CATAG6). Of the 1,507,000 people who reported being on parole in the past 12 months, 143,000 were 65+ years old (9.5%). (Source: NSDUH, 2022: PAROL x CATAG6).
[2] See Daniel M. Hartung et al., Fatal and Nonfatal Opioid Overdose Risk Following Release from Prison: A Retrospective Cohort Study Using Linked Administrative Data, Journal of Substance Use Addiction Treatment (Apr. 2023), https://www.sciencedirect.com/science/article/abs/pii/S2949875923000218?via%3Dihub; Elizabeth N. Waddell et al., Reducing Overdose After Release from Incarceration (ROAR): Study Protocol for an Intervention to Reduce Risk of Fatal and Non-Fatal Opioid Overdose Among Women After Release from Prison, Health Justice (Dec. 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7349469/; Shabbar I. Ranapurwala et al., Opioid Overdose Mortality Among Former North Carolina Inmates: 2000-2015, Am. J. Public Health (Sept. 2018), https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304514.
[3] Criminal Justice Drug Facts, National Institute on Drug Abuse (June 1, 2020), https://www.drugabuse.gov/publications/drugfacts/criminal-justice.
[4] SAMHSA, 2023 National Survey on Drug Use and Health, Table 5.3A. https://www.samhsa.gov/data/report/2023-nsduh-detailed-tables.
[5] Simes, J.T. & Jahn, J.L. (2022). The consequences of Medicaid expansion under the Affordable Care Act for police arrests. PLoS One, 17(1). https://doi.org/10.1371/journal.pone.0261512.
[6] Badaracco, N., Burns, M., & Daugue, L. (2021). The effects of Medicaid Coverage on Post-Incarceration Employment and Recidivism. Health Services Research, 56(S2). https://doi.org/10.1111/1475-6773.13752.
[7] CMS, SHO # 16-007 Re: To Facilitate Successful Re-entry for Individuals Transitioning from Incarceration to Their Communities, Q3 (April 28, 2016), https://www.medicaid.gov/sites/default/files/Federal-Policy-Guidance/Downloads/sho16007.pdf.