News & Insights


August 29, 2022

Health Headlines– August 29, 2022

CMS Eyes State Medicaid Programs as Part of the Biden Administration’s Plan to Improve Nursing Home Care – For the Biden administration, the over 200,000 COVID-related deaths of nursing home residents and staff have served as a powerful signal for the need for nursing home reform.  As part of the administration’s reform efforts, CMS recently issued guidance on August 22, 2022 in an informational bulletin that aims to strengthen the correlation between nursing home quality measures and reimbursement.

In addition to directing CMS to take certain nursing home reform actions, the Biden administration plans to improve the quality of care in nursing homes by:

  • Seeking a $500,000,000 appropriation to HHS directing the agency to improve its inspection processes and procedures, and develop a database that tracks nursing home operators with known healthcare-related violations to increase transparency in nursing home reporting requirements;
  • Increasing enforcement activity and scrutiny of low performing nursing homes;
  • Recommending that CMS promulgate guidance prohibiting nursing home owners from entering into Medicaid provider agreements if they have a history of owning underperforming or non-compliant facilities and that CMS have the ability to initiate enforcement actions against owners after their nursing home facility closed;
  • Directing CMS to implement the results of its study examining the appropriate minimum staffing requirement for nursing homes.  CMS will make this minimum staffing requirement a mandatory requirement for all nursing homes;
  • Relatedly, directing additional funds to make nursing home aid training and certification more affordable in an effort to increase the number of individuals interested in pursuing this career path;
  • Instructing HHS to phase out three-person occupancy rooms and to promote single-occupancy rooms in nursing homes to reduce the spread of infectious diseases;
  • Directing CMS to modify its Medicare and Medicaid reimbursement methodology to account for staff retention, resident satisfaction, and staffing adequacy. The Biden administration also directed CMS to improve information sharing and implement communication best practices; and
  • Developing robust policies to prevent inappropriate diagnoses and prescriptions (particularly with respect to anti-psychotic drugs).

As noted above, the Biden administration has tasked CMS with implementing these nursing home care reforms.  To that end, CMS’s recent informational bulletin encourages states to support its goals by implementing new measures with respect to reimbursement either by changing the methodology used to calculate the base rate or by adding a separate value-based program payment as a monetary incentive to improve nursing home operations.  This would essentially shift reimbursement from volume-based to value-based by factoring in measurements for value-based care indicators such as:

  • How many single-occupancy rooms versus multiple occupancy rooms are utilized by a facility;
  • Establishing staffing incentives such as minimum payment standards for staff; and
  • Increasing payments to facilities that achieve quality standards set by CMS (e.g., Nursing Home Five-Star Quality System) or standards independently developed by states based on their synthesis of state-wide performance data.

In addition to the above steps aimed at improving the quality of nursing home care, CMS has requested that states develop long-range solutions for training and improving staffing and workforce sustainability issues in nursing facilities as well as solutions to improve safety and quality in nursing homes in a manner that specifically addresses the needs of each state.  For example, as previously noted, CMS has requested that states review their own state-specific data sources to identify measurable metrics by which CMS and states may monitor (and incentivize) improvements.  CMS has offered to work with states as they review their data sources and identify potential metrics with the purpose of achieving the goals of the administration including evaluating and updating state emergency preparedness programs.  CMS also requested that states revisit licensure criteria to incorporate the agency’s focus on increasing owner accountability and improving performance standards.  CMS’s guidance urges states to think creatively to address the administration’s objective to improve the quality of care provided by nursing homes.

Information on the White House Biden-Harris Administration’s Nursing Home Reform Action Plan is available here, and CMS’s information bulletin is available here.

Reporter, Kimberly Rai, New York, +1 212 556 2198,

Launches Inquiry into Medicare Advantage Marketing Practices – On August 23, 2022, Senate Finance Committee Chair Ron Wyden (D-Ore.) announced he was launching an inquiry into potentially deceptive marketing tactics by organizations offering Medicare Advantage benefits and Part D prescription drug programs. Senator Wyden’s inquiry comes following information from CMS in its final rule earlier this year that marketing complaints more than doubled from 2020 to 2021 and that many of those complaints were related to third-party marketing organizations (TPMOs). Senator Wyden sent letters to 15 state insurance commissioners and state health insurance assistance programs requesting data about Medicare Advantage marketing complaints and other information. 

Senator Wyden’s requests include the number of Medicare Advantage and Part D marketing complaints from 2019 to 2022 and how many of those complaints were related to TPMOs. Senator Wyden also requested examples of potentially false or misleading marketing materials and advertisements. More specifically, he requested information regarding trends in unsolicited contact of beneficiaries via telemarketers, texting, online outreach, and online targeted advertising.

A copy of Senator Wyden’s letter to the Oregon Department of Insurance Commissioner is available here. A copy of CMS’s final rule discussing the increase in Medicare Advantage and prescription drug plan (PDP) marketing complaints and imposing new requirements on TPMOs is available here.

Reporter, Isabella E. Wood, Atlanta, +1 404 572 3527,


CMS’s Cancer Treatment Payment Model Postponed Originally slated to begin January 1, 2021, CMS finalized a rule to further postpone the implementation of the Radiation Oncology (RO) Model to a date that will be determined in future rulemaking. The proposed five-year model would bundle payments for radiation therapy in certain settings, thereby considerably reducing Medicare costs associated with radiation therapy.  CMS had already postponed the implementation of the RO Model several times due to the COVID-19 public health emergency and legislation prohibiting the implementation of the model. As a result of these delays, the RO Model’s start date was set to begin January 1, 2023. However, in the final rule, CMS cited several reasons for further delaying the implementation of the RO Model, including “two legislative delays[,] the operational resources required of CMS and RO participants to continue to prepare for the RO Model before it can be implemented, and some interested parties’ comments that they would not support the RO Model unless specific changes were made[.]” The final rule is available here.

King & Spalding Webinar - Medicare Payment Update: What You Need to Know About the Medicare Payment Rulemakings for 2023 – On Tuesday, August 30, 2022, at 1:00 P.M. E.T., King & Spalding will host a roundtable to discuss the highlights of the recent rulemakings CMS has issued affecting Medicare payments to providers, including the Inpatient Prospective Payment System (IPPS) Final Rule for FY 2023, the Outpatient Prospective Payment System (OPPS) Proposed Rule for CY 2023, and CMS’s proposed rule to revise the distance requirements for Critical Access Hospitals (CAHs).  Topics of discussion will include:

  • significant revisions to wage index rules;
  • repeal of the “fellow penalty” and other Graduate Medical Education reimbursement changes;
  • empirical Disproportionate Share Hospital (DSH) and Section 1115 uncompensated care pool days after Bethesda Health v. Azar;
  • significant updates for claiming uncompensated care on S-10;
  • OPPS payment cut for 340B drugs, retroactive relief and the fallout of Becerra v. American Hospital Association;
  • Rural Emergency Hospitals; and
  • proposed changes to the CAH distance requirements. 

You can register for the webinar here.