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KHN Southern California correspondent Bernard J. Wolfson was on “Línea Abierta,” a Radio Bilingüe weekday news program, answering questions for a Spanish-speaking audience about his recent column on health plan enrollment through California’s Affordable Care Act marketplace, Covered California.

Wolfson’s column discusses the extraordinary deals available through Covered California. Because of a significant increase in federal tax credits, many people qualify for generous coverage without paying a penny in monthly premiums. Others, with higher incomes, qualify for tax credits large enough to reduce their premiums to easily affordable levels.

But, as Wolfson notes, some enrollees are facing sticker shock: People who received unemployment benefits for at least one week last year paid only $1 a month for comprehensive coverage in 2021, as a result of a federal rule that looks unlikely to be renewed for 2022.

Covered California’s annual enrollment period ends Jan. 31, but people who undergo certain life-altering changes — losing a job, getting divorced, having or adopting a child, for example — can enroll anytime.

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A three-judge federal appeals court panel in Connecticut has likely ended an 11-year fight against a frustrating and confusing rule that left hundreds of thousands of Medicare beneficiaries without coverage for nursing home care, and no way to challenge a denial.

The Jan. 25 ruling, which came in response to a 2011 class-action lawsuit eventually joined by 14 beneficiaries against the Department of Health and Human Services, will guarantee patients the right to appeal to Medicare for nursing home coverage if they were admitted to a hospital as an inpatient but were switched to observation care, an outpatient service.

The court’s decision applies only to people with traditional Medicare whose status was changed from inpatient to observation. A hospital services review team can make this change during or after a patient’s stay.

Observation care is a classification designed for patients who are not well enough to go home but still need the kind of care they can get only in a hospital. But it can have serious repercussions.

Without a three-day inpatient stay, beneficiaries are ineligible for Medicare’s nursing home benefit. So if they need follow-up care in a nursing home after leaving the hospital, they can face charges of about $290 a day, the average national cost of nursing home care, according to a 2021 survey. Also, since observation care is categorized as outpatient treatment — even if the patient is on a hospital ward — they can get stuck with significant copays under Medicare rules.

“You can appeal almost every issue affecting your Medicare coverage except this one, and that is unfair,” said Alice Bers, litigation director at the Center for Medicare Advocacy, which represented the patients in their lawsuit along with Justice in Aging, another advocacy group, and the California law firm of Wilson Sonsini Goodrich and Rosati.

Until Congress passed a law that took effect in 2017, hospitals weren’t required to tell patients whether they were receiving observation care and had not been admitted. Under that law, hospitals must provide written notice, but it does not trigger any right to appeal.

The Department of Justice, representing HHS and the Medicare program, tried numerous times to get the case dismissed, arguing that the decision to admit patients or classify them as “observation patients” was based on a doctor’s or hospital’s medical expertise. Patients had nothing to appeal because the government can’t change a decision it didn’t make, so no Medicare rule had been violated.

Doctors rejected that notion and have long complained that the Medicare rule undermined their clinical judgment and produced “absurd results” that can hurt patients. The American Medical Association and state medical societies filed legal papers in support of the patients challenging the rule, as did several other organizations, including AARP, the National Disability Rights Network, and the American Health Care Association, which represents nursing homes across the country.

But U.S. District Judge Michael Shea ruled against HHS in 2020, and estimated that hundreds of thousands of Medicare patients would be able to seek refunds for nursing home care and other costs that admitted patients don’t pay. The trial took place in 2019.

The government continued to back the rule, however, and asked a federal appeals court panel to reverse Shea’s decision — despite comments from then-chief of Medicare Seema Verma, who questioned these policies in a 2019 tweet, saying that “government doesn’t always make sense.”

On Jan. 25, the appeals court judges upheld Shea’s decision, agreeing that when hospitals switched a patient’s status they were following Medicare’s 2013 “two-midnight rule.” It requires hospitals to admit patients who are expected to stay through two midnights. The ruling applies to people in traditional Medicare.

“The decision to reclassify a hospital patient from an inpatient to one receiving observation services may have significant and detrimental impacts on plaintiffs’ financial, psychological, and physical well-being,” the judges wrote. “That there is currently no recourse available to challenge that decision also weighs heavily in favor of a finding that plaintiffs have not been afforded the process required by the Constitution.”

A DOJ spokesperson declined to comment on whether government lawyers would appeal the new ruling.

Three groups of Medicare patients who were switched from inpatient to observation status after Jan.1, 2009, will be able to file appeals for nursing home coverage and reimbursement for out-of-pocket costs. People currently in the hospital will be able to request an expedited appeal, and others who have recently incurred costs can file a standard appeal by following instructions in their Medicare Summary Notice. A plan for appealing older claims has not yet been arranged, said Bers. The latest details are available on the Center for Medicare Advocacy’s website. (The three-day inpatient hospital stay requirement is temporarily suspended due to the covid-19 pandemic.)

Observation status also causes trouble for people like Andrew Roney, 70, of Teaneck, New Jersey, who was caught unawares when he was switched from inpatient to observation status. He had Medicare’s Part A hospitalization coverage, which is free for most people 65 and older. But he didn’t sign up for Part B, which carries a monthly premium and covers outpatient services, including observation care, doctor visits, lab tests, and X-rays. He spent three days in a nearby hospital for an intestinal infection in 2016.

Roney, a freelance editor and substitute teacher, didn’t think he needed Part B and assumed Part A would cover his hospital stay. Instead, he was surprised to get a $5,000 bill because he was classified as an observation patient and was not admitted. Despite his best efforts, there was nothing he could do about it except to pay up.

“It came as a shock to the system,” said Roney, who testified in the 2019 trial. “I don’t want anybody else to go through that.” Although he had given up hope of getting his money back, he intends to file an appeal now that he can. “It’s a nice chunk of change.”

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Sarah Varney, Kaiser Health News

Even Eden, a snow-covered paradise in northern Vermont, is poisoned by omicron.

The nearly vertical ascent of new coronavirus cases in recent weeks, before peaking in mid-January, affected nearly every mountain hamlet, every shuttered factory town, every frozen bucolic college campus in this state despite its near-perfect vaccination record.

Of all the states, Vermont appeared best prepared for the omicron battle: It is the nation’s most vaccinated state against covid, with nearly 80% of residents fully vaccinated — and 95% of residents age 65 and up, the age group considered most vulnerable to serious risk of covid.

Yet, even this super-vaxxed state has not proved impenetrable. The state in mid-January hit record highs for residents hospitalized with covid-19; elective surgeries in some Vermont hospitals are on hold; and schools and day care centers are in a tailspin from the numbers of staff and teacher absences and students quarantined at home. Hospitals are leaning on Federal Emergency Management Agency paramedics and EMTs.

And, in a troubling sign of what lies ahead for the remaining winter months: about 1 in 10 covid tests in Vermont are positive, a startling rise from the summer months when the delta variant on the loose elsewhere in the country barely registered here.

“It shows how transmissible omicron is,” said Dr. Trey Dobson, chief medical officer at Southwestern Vermont Medical Center, a nonprofit hospital in Bennington. “Even if someone is vaccinated, you’re going to breathe it in, it’s going to replicate, and if you test, you’re going to be positive.”

But experts are quick to note that Vermont also serves as a window into what’s possible as the U.S. learns to live with covid. Although nearly universal vaccination could not keep the highly mutated omicron variant from sweeping through the state, Vermont’s collective measures do appear to be protecting residents from the worst of the contagion’s damage. Vermont’s covid-related hospitalization rates, while higher than last winter’s peak, still rank last in the nation. And overall death rates also rank comparatively low.

Children in Vermont are testing positive for covid, and pediatric hospitalizations have increased. But an accompanying decrease in other seasonal pediatric illnesses, like influenza and respiratory syncytial virus, and the vaccinated status of the majority of the state’s eligible children has eased the strain on hospitals that many other states are facing.

“I have to remind people that cases don’t mean disease, and I think we’re seeing that in Vermont,” said Dr. Rebecca Bell, a pediatric critical care specialist at the University of Vermont Health Network in Burlington, the only pediatric intensive care hospital in the state. “We have a lot of cases, but we’re not seeing a lot of severe disease and hospitalization.”

She added, “I have not admitted a vaccinated child to the hospital with covid.”

Vermont in many ways embodies the future the Biden administration and public health officials aim to usher in: high vaccination rates across all races and ethnicities; adherence to evolving public health guidelines; and a stick-to-itiveness and social cohesion when the virus is swarming. There is no “good enough” in Vermont, a state of just 645,000 residents. While vaccination efforts among adults and children have stalled elsewhere, Vermont is pressing hard to better its near-perfect score.

“We have a high percentage of kids vaccinated, but we could do better,” said Dobson.

He continues to urge unvaccinated patients to attend his weekly vaccination clinic. The “first-timers” showing up seem to have held off due to schedules or indifference rather than major reservations about the vaccines. “They are nonchalant about it,” he said. “I ask, ‘Why now?’ And they say, ‘My job required it.’”

Replicating Vermont’s success may prove difficult.

“There is a New England small-town dynamic,” said Dr. Tim Lahey, director of clinical ethics at the University of Vermont Medical Center in Burlington. “It’s easy to imagine how your behavior impacts your neighbor and an expectation that we take care of each other.”

While other rural states in the Midwest and South have struggled to boost vaccination rates, New England, in general, is outpacing the pack. Behind Vermont, Rhode Island, Maine, and Connecticut have the highest percentage of fully vaccinated residents in the country.

“It’s something beyond just the size,” said Dr. Ben Lee, an associate professor at the Robert Larner, M.D. College of Medicine at the University of Vermont. “There is a sense of communal responsibility here that is a bit unique.”

In a state with the motto “Freedom and Unity,” freedom has largely yielded to unity, and the state’s pandemic response has been met with eager compliance. “The general attitude here has been enthusiasm to be safer,” said Lahey.

Lahey credits the state’s Republican governor, Phil Scott, who has been “unambivalent about pro-vax messaging.” Combined with a “tendency to trust the vaccine, you get a different outcome than in places where political leaders are exploiting that minority voice and whipping people up in anger.”

Vermont’s medical leaders are advising state leaders to shift from a covid war footing — surveillance testing, contact tracing, quarantines, and lockdowns — to rapprochement: testing for covid only if the outcome will change how doctors treat a patient; ceasing school-based surveillance testing and contact tracing; and recommending that students with symptoms simply recuperate at home.

Once the omicron wave passes and less virus is circulating, Dobson said, a highly vaccinated state like Vermont “could really drop nearly all mitigation measures and society would function well.” Vermonters will become accustomed to taking appropriate measures to protect themselves, he said, not unlike wearing seat belts and driving cautiously to mitigate the risk of a car accident. “And yet,” he added, “it’s never zero risk.”

Spared the acrimony and bitterness that has alienated neighbor from neighbor in other states, Vermont may have something else in short supply elsewhere: stamina.

“All of us are just exhausted,” said Lahey, the ethics director. But “we’re exhausted with friends.”

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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