AMRPA Magazine April 2017 by AMRPA

April 2017 â&#x20AC;¢ Vol. 20, No. 4

STRATEGIC PLANNING IN TIMES OF CHAOTIC CHANGE

Volume 20, Number 4

Contributors Bruce Gans, MD Chair, AMRPA Board of Directors, Executive Vice President and Chief Medical Officer, Kessler Institute for Rehabilitation, and National Medical Director for Rehabilitation, Select Medical

Letter from the Chair........................................................................................... 3 AMRPA Legislative Update................................................................................. 4 AMRPA Adds New Team Members................................................................... 6

Jonathan M. Gold, JD Regulatory and Government Relations Counsel*, AMRPA

White House Proposes Steep Cuts to HHS, Other Agencies.......................... 7

Martha Kendrick, JD Partner, Akin Gump Strauss Hauer & Feld LLP

Report Details Progress of CMS Initiative to Improve Care and Reduce Cost Among Long Term Nursing Facility Residents........................... 8

Peter Thomas, JD Counsel to the AMRPA Consumer and Clinical Affairs Committee, Principal, Powers Pyles Sutter & Verville, PC

Government Appeals ALJ Backlog Case........................................................ 10

Lisa Werner, MBA, MS, SLP Director of Consulting Services for FlemingAdvanced Outcomes Design

ECRI Institute Report Identifies Ten Leading Patient Safety Dangers For 2017...................................................................... 13

Carolyn Zollar, MA, JD Executive Vice President for Government Relations and Policy Development, AMRPA

MedPAC Releases Annual Spring Report to Congress; Proposes 5 Percent Cut for Rehabilitation Hospitals and Units.................... 14

Mimi Zhang Policy and Research Associate, AMRPA

GAO: HHS Needs to Improve Its Efforts at Increasing EHR Use in Post-Acute Care Settings.............................................................. 19

Lovelyn Robinson Editorial and Research Assistant, AMRPA *Admitted Only in Illinois. Supervision by Carolyn C. Zollar, J.D., a member of the D.C. Bar

AMRPA Magazine, Volume 20, Number 4. AMRPA Magazine is published monthly by the American Medical Rehabilitation Providers Association (AMRPA). AMRPA is the national voluntary trade association representing inpatient rehabilitation hospitals and units, hospital outpatient departments and settings independent of the hospital, such as comprehensive outpatient rehabilitation facilities, rehabilitation agencies and skilled nursing facilities. SUBSCRIPTION RATES: Member institutions receive the AMRPA magazine as part of their membership dues. Individuals who are employees of member institutions may subscribe to the magazine for $100 annually. Nonmember individual subscriptions are $500 per year. Send subscription requests to AMRPA, 529 14th Street, NW, Washington, DC 20045 USA. Make checks payable to AMRPA.

CMS Transmittals of Interest for Medical Rehabilitation Providers .............. 12

New AHRQ Toolkit Aims to Reduce CAUTI and Other HAIs in Long-Term Care Facilities......................................................... 20 Latest Research Findings.................................................................................. 23 2017 Medicare Participating Post Acute Care Providers ............................... 24 Preparing for a Medical Necessity Review...................................................... 25 AMRPA Submits Comment Letter to CMS on 2018 Medicare Advantage and Part D Advance Notice and Draft Call Letter ...................... 27 AMRPA Seeks Clarification from CMS on Practitioners and Suppliers Use of Prosthetics and Custom Orthotics .............................. 29

ADVERTISING RATES: Full page = $1500; Half page = $1000; Third page = $750. Ads may be B&W or full color. Contact Ryan Foster, rfoster@kellencompany.com for additional specs and acceptable submission format. Advertising Contact: Rachel Koresky, AMRPA, 529 14th Street, NW, Washington, DC 20045 USA, Phone: +1-202591-2469, Email: rkoresky@amrpa.org Statements of fact and opinion are the responsibility of the authors alone and do not imply an opinion on the part of the officers or the members of AMRPA. All content ©2017 by American Medical Rehabilitation Providers Association. All rights reserved. Materials may not reproduced in any form without written permission. Design and layout services provided by Kellen Company.

An article on page 10 of the March 2017 issue of AMRPA included an incorrect headline and byline; the correct headline and byline should read “CMS Finalizes Changes to the Medicare Administrative Appeals Process,” by Peter W. Thomas – Counsel, AMRPA Consumer and Clinical Affairs Committee and Denials Management Task Force – and Steve Postal, Director, Health Policy, Powers Law Firm. AMRPA regrets the error.

POSTMASTER: Send address changes to Kellen Company, Attn: AMRPA Magazine Circulation 529 14th Street, NW, Suite 750, Washington, DC 20045

AMRPA Magazine April 2017

LETTER FROM THE CHAIR

Letter from the Chair Bruce M. Gans, MD, Executive Vice President and Chief Medical Officer, Kessler Institute for Rehabilitation and National Medical Director for Rehabilitation, Select Medical bgans@kessler-rehab.com

“Unity and solidarity are essential for us to protect our capacity to care for the patients who need us in the changing health care payment and delivery environment.”

s this message is being written, changes proposed by Congressional leadership are under active debate. Things will likely be very different when you are reading this than when I was writing it. So I’m not going to speak to the specifics, but rather to AMRPA’s approach to all of this change. The AMRPA Board will have finished developing a new strategic plan by the time this message is published, and I predict that it will focus on at least three different views: the ongoing needs for rehabilitation hospitals and units, the evolving post-acute care continuum and that AMRPA as an association will need to adapt and adjust to the changing world in which we live. Given all of the rapidly changing future timelines (sounds like the plot for a new sci-fi movie), I expect that we will develop multiple parallel and alternative strategies based on differing assumptions (scenariobased planning). Some foundational matters will be true across all of the possible scenarios. Top among them is that AMRPA needs to truly be the voice and representative of the field. That means we need all providers to belong, be involved and be active in AMRPA’s services

and activities. This is also true of the data to which we have access that is used to describe the state and needs of the field, which for us means eRehabData®. We must continue to have access to highly representative information about the field and to use that data wisely. So while many details and activities will be pursued after we actually have completed our plan, we already know that we need membership in AMRPA and subscriptions to eRehabData® to both grow. That means you, our existing members, have a personal obligation to engage your friends, colleagues and competitors to join or maintain membership in AMRPA, and to also engage members and non-members to subscribe to (and take advantage of all the benefits from) eRehabData®. Unity and solidarity are essential for us to protect our capacity to care for the patients who need us in the changing health care payment and delivery environment.

AMRPA LEGISLATIVE UPDATE

By Martha M. Kendrick, Esquire, Partner, Akin Gump Strauss Hauer & Feld LLP

n March 6, 2017, the House Ways and Means Committee and the House Energy and Commerce Committee released highly anticipated draft legislation to replace the Affordable Care Act (ACA). The American Health Care Act (AHCA) would eliminate the ACA’s individual and employer mandates; delay the socalled “Cadillac tax” on high-cost health

• • • • •

Interestingly, satisfying one of these two groups is likely to increase opposition in the other group. The bill will fail if at least 22 Republicans join with Democrats to vote against it. The Rules Committee may consider a Manager’s Amendment with changes intended to mollify conservatives or moderates. These changes could be along the lines of two amendments that Rep. Joe Barton (R-TX) offered and withdrew during the Energy

On March 6, 2017, House Republican Leadership released The American Health Care Act, legislation intended to repeal and replace The Affordable Care Act through a Budget process known as Reconciliation. The House Budget Committee advanced the unified legislation on March 16, following simultaneous mark-ups in the House Energy and Commerce Committee and Ways and Means Committee on March 8. President Trump and HHS Secretary Tom Price have expressed support for the legislation. CBO estimates that by 2018, 14 million more people would be uninsured than under current law. That number would rise to 21 million in 2020 and then to 24 million in 2026. The Senate voted to approve Seema Verma as Administrator of the Centers for Medicare and Medicaid Services (CMS) by a 55-to-43 vote on March 13.

plans; roll back other ACA taxes; create a system of age-based refundable tax credits to help consumers purchase health insurance; establish incentives for maintaining continuous coverage; unwind the ACA’s Medicaid expansion; and implement a per capita allotment for all Medicaid payments. Republicans are hoping to advance a Reconciliation bill that would require only a 51-vote majority in the Senate to pass. The House Budget Committee on March 16 voted 19-17 to approve the unified Reconciliation bill without amendment. All Democrats and three Republicans on the Committee – Reps. Mark Sanford (R-

SC), Dave Brat (R-VA) and Gary Palmer (R-AL) – voted against advancing the legislation. The Budget Committee vote followed simultaneous separate mark-ups in the House Ways and Means Committee and the House Energy and Commerce Committee on March 8, during which Democrats offered dozens of amendments, all of which were defeated. The Ways and Means Committee adopted all five of Chairman

Kevin Brady’s (R-TX) amendments in the nature of a substitute, while the Energy and Commerce Committee adopted an amendment in the nature of a substitute and another technical amendment offered by Chairman Greg Walden (ROR). As we go to press, the Republican repeal-and-replace bill heads to the Rules Committee, which will prepare the legislation for a floor vote. The legislation’s prospects in the full House remain unclear, given the Freedom Caucus’s opposition to the bill and pressure from moderate Republicans to address Medicaid and other concerns.

and Commerce Committee mark-up that would end Medicaid expansion enrollment under the enhanced federal match rate two years earlier than the bill proposes. Senate support for the House GOP bill is even more uncertain. Senators on both sides of the aisle are vocally criticizing many aspects of the bill. Majority Leader Mitch McConnell (R-KY) has said Senators will have an opportunity to amend the legislation before it is brought to the floor, but Senate Republicans nonetheless are raising concerns about the bill, particularly in light of a Congressional Budget Office (CBO) report estimating

AMRPA Magazine April 2017

that it would leave 14 million more people uninsured in 2018 than under current law. The Administration, meanwhile, is supporting the Reconciliation bill, with White House press secretary Sean Spicer stating that passing any other plan would be “unbelievably difficult.” President Trump has backed the plan in a number of statements and tweets, while Vice President Mike Pence is meeting with Republicans to shore up votes among conservatives. Mounting his own strong defense of the legislation, HHS Secretary Tom Price has insisted that “nobody will be worse off financially” under the GOP plan. CBO Scores House Repeal Bill The Congressional Budget Office (CBO) on March 13 released its cost estimate for the American Health Care Act. CBO estimates that 14 million more Americans would be uninsured by 2018 compared with the ACA. That number would rise to 21 million in 2020 and then to 24 million in 2026 following additional changes to subsidies and to the Medicaid program. By 2026, roughly 52 million people would be uninsured, compared with 28 million who would lack coverage under the ACA. The CBO report also projects the bill would reduce deficits by $337 billion over 10 years, with the largest reductions coming from decreased Medicaid spending and the elimination of the Affordable Care Act’s subsidies. Reforms to Medicaid, including the repeal of the Medicaid expansion and the establishment of a per capita allotment, would reduce federal spending on the program by $880 billion from 2017-2026. CBO expects the bill would result in 14 million fewer Medicaid enrollees by 2026 than under current law. The bill would increase premiums by 15 to 20 percent in the individual marketplace in 2018 and 2019, then lower average premiums starting in 2020. By 2026, average premiums in the individual market are estimated to be about 10 percent lower than under current law. CBO states that the bill’s tax credits, along with grants to states from the Patient and State Stability Fund, would help to stabilize insurance markets. Democrats immediately attacked Republicans upon release of the CBO estimates, pointing to the cuts to

Medicaid and the projected increase in uninsured Americans. Speaker Paul Ryan (R-WI) defended the bill, pointing to its projected impact on premiums and the deficit. The White House, meanwhile, frontally attacked the accuracy of the report, with HHS Secretary Tom Price saying that the CBO report does not take into account other administrative steps and additional legislation that Republicans hope to pass. FY 2017 and 2018 Budget Outlook Congress anticipates finishing up Fiscal Year (FY) 2017 Appropriations by April 28, when the current Continuing Resolution (CR) expires. Only one regular spending bill, the Military ConstructionVA appropriations bill, passed before Fiscal 2017 began on October 1, 2017, and the government continues to operate under a Continuing Resolution. While the House on March 8 advanced the FY 2017 defense spending bill to the Senate, it is unclear how the remaining 10 appropriations bills will be handled; however, most members expect these bills will cross the finish line. House Appropriations Committee Chairman Rodney Frelinghuysen (R-NJ) stated that the panel will likely package the remaining 11 appropriations bills into several “minibuses” before sending them to the House floor. Speaker Paul Ryan (R-WI) recently suggested that the limited timeframe may force Congress to pass another stopgap spending bill to avoid a government shutdown. Meanwhile, the Administration appears to be focusing on outlining Budget priorities for FY 2018 before making final decisions for 2017. On March 16, the Office of Management and Budget (OMB) released President Trump’s “A Budget Blueprint to Make America Great Again.” This “skinny budget” outlines the President’s budget priorities for Fiscal Year (FY) 2018. According to the document, the President’s FY 2018 Budget requests $69.0 billion for HHS, a $15.1 billion or 17.9 percent decrease from the 2017 level. This funding level excludes certain mandatory spending changes but includes additional funds for program integrity and implementing the 21st Century CURES Act. Cuts include reducing funding for the National Institutes of Health’s (NIH) from $5.8

billion to $25.9 billion and eliminating $403 million in training programs for health professions and nursing. The Budget would increase funding for the Health Care Fraud and Abuse Control (HCFAC) program to $751 million in 2018 in order to prevent fraud, waste and abuse in Medicare and Medicaid. The blueprint also states that the President’s Budget will focus spending “on the highest priority activities necessary to effectively operate” Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP), suggesting modest cuts to Centers for Medicare and Medicaid Services (CMS) administrative expenses. A full Budget is expected to be released in May (see separate article in this magazine). Senate Votes on Seema Verma Nomination for CMS On March 2, the Senate Finance Committee voted 13-12 along party lines to advance Seema Verma’s nomination to be administrator of the Centers for Medicare and Medicaid Services (CMS). On March 9, the Senate voted 54-44 to invoke cloture on Verma’s nomination. The Senate officially confirmed her nomination on March 13 with a 55 to 43 vote. Four Democratic Senators voted in her favor - Sens. Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV) and Independent Sen. Angus King (ME). Vice President Pence presided over her swearing in on March 14. Ms. Verma, who advised then-Governor Pence during Indiana’s Medicaid expansion plans, will play a significant role in implementing the GOP’s Obamacare replacement policies. Trump Orders Creation of Regulatory Reform Task Forces On February 24, President Trump signed an Executive Order (EO) that directs agencies to develop regulatory reform task forces. The EO requires a team of dedicated officials at each agency to “research all regulations that are unnecessary, burdensome and harmful to the economy and therefore harmful to the creation of jobs and business” and, within 90 days, make recommendations to repeal or simplify those regulations. The task forces must also report on their progress toward implementing regulatory reform initiatives and policies.

The new order follows the White Houseâ&#x20AC;&#x2122;s previous order requiring agencies to identify two regulations for elimination for each new regulation proposed. House Education and the Workforce Committee Advances Health Care Bills The House Education and the Workforce Committee on March 8 advanced three health care bills intended to lower costs and improve flexibility for small businesses. The Small Business Health Fairness Act (H.R. 1101) would allow small businesses to join together to offer coverage through association health plans. The Self Insurance Protection Act (H.R. 1304) would shield self-insured plans from federal regulation. The

Preserving Employee Wellness Programs Act (H.R. 1313) would clarify rules regarding employee wellness plans. All three bills passed on party-line votes.

at HHS, we are preparing for a very active regulatory and Congressional agenda! We need the continued engagement of every AMRPA member!

***

Regards, Martha M. Kendrick

We would like to extend a special thank you to AMRPA members who traveled to Washington, D.C. in March to participate in our Annual AMRPA Spring Conference on Capitol Hill. Members of Congress and their staff across a broad geographic spectrum were educated about the unique role of rehabilitation hospitals in the continuum of care. Now that Secretary Price and CMS Administrator Verma are

AMRPA ADDS NEW TEAM MEMBERS As a new Congress and Presidential Administration advance major changes impacting the medical rehabilitation field, AMRPA has added to its Washington D.C. staff to execute its agenda and meet the demands of the coming years. Jonathan Gold joins AMRPA as Regulatory and Government Relations Counsel* and will focus his work on payment policies, denials management and appeals, among other legislative and regulatory reforms affecting AMRPA member patients and facilities. Jonathan previously worked for the U.S. Department of Health and Human Services (HHS) as Press Secretary and Special Advisor in the Office of the Secretary. At HHS, he worked on issues pertaining to the ACA, MACRA and other reform efforts. Prior to HHS, he worked for the Comptroller of Maryland and on Capitol Hill. Jonathan has his J.D. and B.A. from Saint Louis University and is originally from the suburbs of Chicago. Also joining AMRPA is Angela Young, Executive Assistant to Executive Vice President Carolyn Zollar and the rest of the D.C. Staff. Angela previously worked for the American Association for Retired Persons and the Managed Funds Association and comes to AMRPA with more than 13 years of comprehensive administrative experience. Angela will work closely with Carolyn and AMRPA leadership to enhance the day-to-day planning and operations of the Washington, D.C. office. Jonathan can be reached at jgold@amrpa.org and 202-223-1920, and Angela can be reached at ayoung@amrpa.org and 202-223-1920. Please join us in welcoming Angela (Angie) and Jonathan! *Admitted Only in Illinois. Supervision by Carolyn C. Zollar, J.D., a member of the D.C. Bar.

AMRPA Magazine April 2017

WHITE HOUSE PROPOSES STEEP CUTS TO HHS, OTHER AGENCIES By Martha M. Kendrick, JD, Partner, Akin Gump Strauss Hauer & Feld LLP

he Office of Management and Budget (OMB) on March 16 released President Trump’s “A Budget Blueprint to Make America Great Again.” This “skinny budget” outlines the President’s Budget priorities for Fiscal Year (FY) 2018. A full President’s Proposed FY 2018 Budget is expected in May and will include specific mandatory and tax proposals. The President’s FY 2018 Budget blueprint proposes cutting funding for the Department of Health and Human Services (HHS) by $15.1 billion, or 17.9 percent, to $69.0 billion. This funding level includes additional spending for program integrity efforts and the implementation of the 21st Century CURES Act. The Budget would increase funding for the Health Care Fraud and Abuse Control (HCFAC) program to $751 million in 2018 in order to prevent fraud, waste and abuse in Medicare and Medicaid. The blueprint also states that the President’s Budget will focus spending “on the highest priority activities necessary to effectively operate” Medicare, Medicaid and the Children’s Health Insurance Program (CHIP), suggesting modest cuts to Centers for Medicare and Medicaid Services (CMS) administrative expenses. AMRPA expects additional Medicare-related provisions of interest to be included in the full FY 2018 Proposed Budget. The Budget would increase funding for substance abuse treatment services by $500 million over 2016 enacted levels to help combat the opioid crisis. Cuts include reducing funding for the National Institutes of Health (NIH) by $5.8 billion and eliminating $403 million for health professions and nursing training programs. The Budget includes a major reorganization of the NIH’s Institutes and Centers, including consolidating the Agency for Healthcare Research and Quality (AHRQ) within NIH.

Discretionary funding increases

Discretionary funding decreases

Defense +10.0% Homeland Security +6.8% Social Security Administration +0.2% Veterans Affairs +5.9%

Agriculture -20.7% Commerce -15.7% Education -13.5% Energy -5.6% Environmental Protection Agency -31.4% General Services Administration N/A Health and Human Services -16.2%* Housing and Urban Development -13.2% Interior -11.7% Justice -3.8% Labor -20.7% NASA -0.8% Small Business Administration -5.0% State -28.7% Transportation -12.7% Treasury -4.4%

*This figure from the summary tables in the Budget document includes certain mandatory changes and excludes the program integrity and CURES funding. The table above provides an overview of changes in discretionary funding for federal agencies. The Budget blueprint received a cool reception on Capitol Hill, with key Republicans expressing concerns about the steep funding cuts. Rep. Tom Cole (ROK), chairman of the House Appropriations Committee Labor-HHS Subcommittee, said the cuts to NIH and other HHS agencies are “very short-sighted,” adding that health research is as crucial an investment as defense. Senate Appropriations Committee Labor-HHS Subcommittee

Chairman Roy Blunt (R-MO), meanwhile, highlighted the “many concerns with nondefense discretionary cuts.” Typically, the Congressional Appropriations process is a bipartisan exercise. With Democrats firmly opposed to the President’s Proposed Budget request for FY 2018, it appears that at least some of its proposals will not make it through Congress.

REPORT DETAILS PROGRESS OF CMS INITIATIVE TO IMPROVE CARE AND REDUCE COST AMONG LONG TERM NURSING FACILITY RESIDENTS By Jonathan M. Gold, JD, Regulatory and Government Relations Counsel*, AMRPA

recently released CMSfunded report presented and analyzed findings from the fourth year of CMS’ Initiative to Reduce Avoidable Hospitalizations Among Nursing Home Residents. The Initiative is designed to reduce hospitalization rates, improve MDS quality metrics and decrease total cost of care through clinical interventions and educational models at long stay nursing facilities. The patients eligible for the Initiative are those who have been in the facility for at least 101 days, or those who have MDS assessments indicating that there is no active discharge plan in place, irrespective of length of stay in the facility. The Initiative is taking place in seven states and utilizes state-based Enhanced Care and Coordination Providers (ECCPs) who partnered with nursing facilities in their state to improve cost and care. Each ECCP designed its own interventions within the Initiative, under CMS guidance, and began implementing the Initiative in nursing facilities in February 2013. The ECCPs in Alabama and New York implemented only educational components and do not include a clinical care component. The ECCPs in Indiana, Missouri, Nebraska, Nevada and Pennsylvania include direct patient oversight by ECCP staff as well as an educational component. The recently issued report compared per-beneficiary spending, hospital utilization, including potentially avoidable readmissions and MDS quality measures against a comparison group in the respective state not partnered with an ECCP.

Impact on Spending The report examined total per-patient beneficiary Medicare spending, per-patient spending for all-cause hospitalizations and spending for potentially avoidable hospitalizations. Six out of seven state ECCPs (all except New York) show an average downward ECCP effect on Medicare beneficiary spending for 2015, but the report found that only four of the states have a statistically significant reduction: Indiana, Missouri, Nevada and Pennsylvania. The average from across all seven states was an ECCP effect of $1,651 reduction in spending per participant, and among states with a statistically significant reduction, the average was $3,251. When analyzing ECCP effect on Medicare expenditure for all-cause hospitalizations, the report found that all states showed a reduction but again concluded that only Indiana, Missouri, Nevada and Pennsylvania saw a statistically significant reduction. The average ECCP effect across all states was $804 per participant and $1,421 per participant in states with a statistically significant reduction. The report’s analysis of ECCP impact on Medicare expenditure for potentially avoidable hospitalizations found that all states showed a reduction, but only three states – Missouri, Nevada and Pennsylvania – encountered statistically significant reductions. Here, the average ECCP associated reduction was $299 per participant across all states and $503 across the statistically significant reduction states.

Highlights: •

•

Incorporating Education and Clinical Components Found to Reduce Cost and Utilization for Most Participants. No Impact Shown on MDS Quality Measures.

Impact on Utilization The report used all-cause hospitalization counts, potentially avoidable hospitalization counts, emergency department (ED) visits and potentially avoidable ED visits to gauge ECCP effect on utilization rates among Medicare beneficiaries. When it came to all-cause hospitalizations, the study found a reduction in admissions among all seven states, with three of the states’ effect determined to be statistically significant (Indiana, Missouri and Nevada). For potentially avoidable hospitalizations, four states had statistically significant reductions in admissions (Alabama, Indiana, Missouri and New York), while all states still showed admission rates below the comparison group average. While there was success in reducing hospitalizations, the ECCPs may have had less success in reducing ED visits. The study indicates all-cause ED visits were lower at a statistically significant level in just two states: Alabama and Missouri. Four of the remaining five states still had counts below the comparison group (Nevada showed an increase in ED Visits), but the results for these five states were not found to be statistically significant. Alabama and Missouri also were the only states to show a significant AMRPA Magazine April 2017

reduction in potentially avoidable ED visits. Three of the remaining states, Indiana, New York and Pennsylvania, had statistically insignificant reductions, and Nebraska and Nevada had increases that were also declared not statistically significantly different from zero. Impact on Quality Measures Interestingly, despite some ECCPs showing advantages in spending and utilization measures when compared to non-ECCPs, the report found the Initiative to have no impact on MDS quality measures. The study concluded that there was an overall lack of pattern or meaningful effect on MDS measures in 6 of the 7 states, with New York being the exception. The report noted that in New York, five out of the eight MDS-based quality outcomes from the ECCP was

an improvement over the comparison group, including the initiative being associated with a statistically significant 1 percentage point reduction in selfreported moderate to severe pain in New York. The authors of the report suggested that the lack of change in MDS measures may be due to the ECCP’s specific focus on reducing hospital admissions and ED visits, which would minimize the effects of the interventions on MDS-based quality measures. They also conclude that despite a lack of MDS data to support an improvement in quality, “reductions in avoidable hospitalizations are indications of improvement in quality because of the distress created for residents related to a hospitalization.”

Conclusion Overall, the report takes a favorable view of ECCP effects on reducing hospitalizations, ED visits, and related Medicare expenditures. The study notes that the 2015 results continue an earlier trend from the first two Initiative study years, 2013 and 2014, showing a positive Initiative impact on the utilization and expenditure outcomes. The report takes note, however, of the variations in results among States, which they attribute to programmatic and implementation differences between ECCPs.

*Admitted Only in Illinois. Supervision by Carolyn C. Zollar, J.D., a member of the D.C. Bar

JOIN TODAY!

EDUCATION , COMMUNICATION, PARTICIPATION & OPERATIONAL ASSISTANCE AMRPA: Working Together To Preserve Access To Medical Rehabilitation Maggie Ramirez · VP ofTogether Membership Services · 347-573-3732 · mramirez@amrpa.org AMRPA: Working to Preserve Access to Medical Rehabilitation Rachel Koresky, AMRPA Member Services Coordinator | 202-591-2469 | rkoresky@amrpa.org

GOVERNMENT APPEALS ALJ BACKLOG CASE

he suit by the American Hospital Association (AHA) against the Secretary of Health and Human Services (HHS) has returned to the D.C. Circuit Court of Appeals, where HHS has once again argued that it should not be required to clear the backlog of Administrative Law Judge (ALJ) appeals, which currently stands at 650,000. The Government appealed the holding of the District Court in December, which compelled HHS to eliminate the lengthy backlog by 2020. The parties are now on an expedited briefing schedule, and oral argument has been scheduled for May. At stake are hundreds of millions of dollars of Medicare providers’ reimbursements and interest payments for services already provided to beneficiaries.

The D.C. Circuit reversed the district court and held that AHA satisfied the core requirements of what is needed to demonstrate that the court had “jurisdiction” to hear the case. The court held that because hospitals have a clear right to ALJ decisions in 90 days, the Secretary has a clear duty to decide ALJ appeals in 90 days, and hospitals have no adequate alternative remedy other than mandamus. Citing the FAIR Fund’s brief, the D.C. Circuit noted that the ALJ backlog is having a real impact on human health and welfare because some providers are admitting fewer cases that are likely to be targeted by Recovery Audit Contractors (RACs). The D.C. Circuit sent the case back (i.e., “remanded”) to the district court, however, to determine whether Congress and the Secretary are making “significant progress” toward solving the ALJ backlog.

AMPRA’s sister organization, the Fund for Access to Inpatient Rehabilitation (FAIR Fund) has played an active supporting role in this important case, filing three “friend of the court” briefs and developing another one for the current appeal. The FAIR Fund has made important contributions to this case both at the district court and previously at the court of appeals. HHS filed its latest brief on February 2. This memo summarizes the course of this litigation, the FAIR Fund’s contributions and HHS’s most recent arguments.

The Secretary’s first action on remand was to request that the district court stay proceedings for 17 months, until September 30, 2017, arguing that the agency’s initiatives and legislation pending in Congress would clear the backlog without judicial intervention. AHA opposed the stay, and the FAIR Fund filed another amicus brief, also opposing the stay. The FAIR Fund pointed out that the Secretary’s initiatives would actually result in an increase in the ALJ backlog unless Congress provides substantial additional funding, which was unlikely. The FAIR Fund cited statistics that AMRPA and other stakeholders collected from inpatient rehabilitation hospitals and units showing that IRFs win more than 80 percent of appeals and have millions of dollars tied up in the ALJ backlog.

History and Status of the Case AHA filed suit in 2014 against the Secretary of HHS, seeking a “writ of mandamus,” which is an order directing a government official to comply with a duty. Here, the duty is to decide ALJ appeals within 90 days, as required by the Medicare statute. In December 2014, the court dismissed AHA’s suit. The court believed at that time that the extensive delays in ALJ decisions should be addressed by HHS and Congress, not the courts. AHA appealed to the D.C. Circuit Court of Appeals, where the FAIR fund filed an amicus curiae (friend of the court) brief in support of AHA. One of the key elements of the amicus brief was the impact of the ALJ backlog on Medicare beneficiaries and the sentinel effect the delays can have on current access to inpatient hospital rehabilitation.

On September 19, 2016, the district court denied the Secretary’s motion to stay or delay the case. Although the court did not at that time formally decide whether to order the Secretary to comply with the 90-day ALJ deadline, the judge did weigh factors for and against the issuance of a mandamus order when analyzing whether to grant the stay. In other words, the judge was clear that the outcome of the motion would indicate whether or not he would grant the writ of mandamus.

The District Court determined that the factors in favor of a writ of mandamus outweighed the factors against. The court again mentioned the real impact on health and human welfare from the ALJ delay. The court discussed the statistics presented by the FAIR Fund showing that IRFs have at least $135 million tied up in the backlog. Because IRFs win as many as 80 percent of their appeals – 87 percent when the value of the claims are used to calculate the percentages – it follows that most of these funds rightfully belong to the IRFs that provided care to Medicare beneficiaries. The court agreed with AHA and the FAIR Fund that the Secretary’s initiatives would not solve the ALJ backlog and would actually result in it growing over time. The court emphasized that “significant progress toward a solution cannot simply mean that things get worse more slowly than they

ABOUT THE AUTHORS

Peter W. Thomas Principal, counsel to the AMRPA Consumer and Clinical Affairs Committee

Ronald S. Connelly Principal, the Powers Firm AMRPA Magazine April 2017

would otherwise.” The court also faulted the Secretary for not exercising greater control over the RAC program. The court concurred that Congress is unlikely to solve the backlog. The court again cited the FAIR Fund’s brief, which pointed out that the House and Senate Budget Committees refused to even hold hearings on President Obama’s 2017 budget request, which would have provided significant additional funding for ALJs. The court also agreed with the FAIR Fund that lack of action on the Audit and Appeals Fairness, Integrity and Reforms in Medicare Act of 2015 (AFIRM Act) pending before the Senate Finance Committee, showed that this bill was unlikely to relieve the backlog in the near term. For all of these reasons, the court denied the motion to stay the case, and at the same time, the court strongly implied that it would order HHS to comply with the 90-day ALJ deadline. On December 5, 2016, the district court granted a writ of mandamus and ordered HHS to clear the backlog by 30 percent per year and to completely eliminate it by the end of 2020. The court rejected HHS’s argument that imposing a timetable for clearing the backlog would require it to violate a statutory prohibition on paying non-meritorious claims. The court noted that “[t]he agency is also bound by statutorily mandated deadlines, of which it is in flagrant violation as to hundreds of thousands of appeals.” In early February, HHS appealed once again to the D.C. Circuit Court. Recognizing that the D.C. Circuit will be bound by its prior decision, HHS did not renew its argument that the statute permits it to take longer than 90 days to decide ALJ appeals. Rather, HHS argues that the court should not have ordered HHS to comply with the deadline because it would be forced to settle large numbers of claims for non-covered services or that are otherwise not payable. According to HHS, this would violate a statutory prohibition on paying improper claims. At the time of this writing, the AHA’s response brief was not yet available. Once AHA responds, the government will have another opportunity to submit a reply brief. FAIR Fund’s amicus brief is due on March 30. The first D.C. Circuit case was decided by a three-judge panel. This second case will also be decided by a three-judge panel, but the judges will likely be different from the

ones selected for the first appeal. The panel, however, will be bound by the first panel’s decision. If HHS loses this most recent case, it can then request review by the full D.C. Circuit, which would not be bound by either panel’s decision. Therefore, if the full court accepted review, it would have authority to review and even reverse the prior decision that the Medicare statute requires HHS to decide ALJ appeals in 90 days. Regulation by OMHA May Impact the AHA Case In last month’s AMRPA Magazine, we wrote about a new federal regulation issued in the closing days of the Obama Administration pertaining to the Office of Medicare Hearings and Appeals. On January 17, CMS published a Final Rule to alter the administrative appeals process for Medicare claim denials. The Final Rule contains several provisions that could significantly impact the appeal process, most notably, a provision to remove the mandatory nature of the Administrative Law Judge (ALJ) decision deadline. The Final Rule will take effect on March 21. FAIR Fund has written to HHS Secretary Price requesting the agency to withdraw the portion of the regulation that removes the mandatory 90-day ALJ deadline based on the economic burden it will have on all Medicare providers caught up in the ALJ backlog. The Final Rule removes the mandatory nature of the 90-day deadline for ALJ decisions, despite FAIR Fund’s and AMRPA’s strong comments opposing this provision. Previously, the regulation governing the deadline for issuing an ALJ decision stated that the ALJ “must issue” a decision within 90 days of an ALJ hearing request. The previous regulation was consistent with the Medicare statute, which also requires ALJ decisions to be issued within 90 days. CMS’s removal of the word “must” in the Final Rule indicates that the 90-day deadline for rendering a decision is not absolute. In fact, CMS stated that “we believe ‘must’ should be reserved for absolute requirements, and in the context of adjudication time frames, the statute provides the option for an appellant to escalate an appeal if the adjudication time frame is not met.” CMS further justified this change by stating that it does not infringe on the right of providers to escalate their appeals to the Medicare Appeals Council if the 90-day deadline is breached.

This change constitutes an alteration of the plain text reading of statutory language of the Medicare law and presents a troubling attempt by CMS to recast its statutory duties. The rationale for this change is highly suspect in light of the extensive backlog that also exists at the Medicare Appeals Council level. In addition, the ALJ hearing is the only place where a provider can obtain an evidentiary hearing where most Medicare denials finally receive an impartial review of the facts and circumstances of the challenged case. This regulation is contrary to the statutory 90-day deadline, as confirmed by the D.C. Circuit in AHA v. Sebelius. It is also inconsistent with the President’s Executive Order on Enforcing the Regulatory Reform Agenda. The Executive Order directed federal agencies “to alleviate unnecessary regulatory burdens placed on the American people.” Agencies must identify regulations that “impose costs that exceed benefits” for potential repeal or modification. The ALJ regulation will impose significant costs on health care providers by permitting HHS to hold Medicare payments for years for services that have already been rendered. The experience of the IRF field shows that many of these denied claims will eventually be overturned, but providers could be denied funds for years. The cost of this regulation will likely exceed the benefits both for providers and for the federal government (due to the large interest payments the government will be forced to make when long-delayed appeals are decided in favor or providers. Again, this regulation will become effective as soon as March 21. It is not clear whether this new regulation will have an impact on the AHA case pending before the DC Circuit. The court has already stated that the 90-day deadline derives from the Medicare statute, and a regulation that contradicts a statute can be struck down. The court rejected in the AHA case the same reasoning that HHS used when it issued this new regulation. Therefore, if this regulation goes into effect in time, and it is raised by the government in the context of the AHA litigation, the court may view HHS’s actions as an end-run around the court’s authority. Courts usually do not react well to these types of scenarios.

CMS TRANSMITTALS OF INTEREST FOR MEDICAL REHABILITATION PROVIDERS

April 2017

Note: The Centers for Medicare and Medicaid Services (CMS) daily publishes official transmittals used for communicating reminder items, requests for action or information to fiscal intermediaries and carriers. In this section of the AMRPA magazine you will find specifically selected transmittals listed that would be of interest to medical rehabilitation providers. To view the entire lists please see: https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2017-Transmittals.html Transmittal # R3735CP R1806OTN R234BP

Issue Date

Subject

Implementation Date

CR#

20174-03-10

April 2017 Integrated Outpatient Code Editor (I/OCE) Specifications Version 18.1

2017-04-03

10002

2017-03-14

Health Insurance Portability and Accountability Act (HIPAA) Electronic Data Interchange (EDI) Front End Updates for July 2017

2017-07-03

9881

2017-03-10

Clarification of Admission Order and Medical Review Requirements

2017-06-12

9979

2017-03-10

Quarterly Update for the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Competitive Bidding Program (CBP) - July 2017

2017-07-03

10004

Revision to State Operations Manual (SOM) Appendix PP Incorporate revised Requirements of Participation for Medicare and Medicaid certified nursing facilities.

2017-03-08

N/A

2017-03-03

April 2017 Update of the Ambulatory Surgical Center (ASC) Payment System

2017-04-03

9998

2017-03-03

To reflect clarifications and corrections to existing instructions. The effective dates for changes vary. For cost reporting periods beginning on or after October 1, 2014, Freestanding FQHCs are required to file using the Freestanding FQHC Cost Report (Form CMS 224 14), not the Independent (RHC)/Freestanding FQHC Cost Report (Form CMS-222-92).

N/A

2017-03-03

April Quarterly Update for 2017 Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Fee Schedule

2017-04-03

9988

2017-03-03

Affordable Care Act Bundled Payments for Care Improvement Initiative - Recurring File Updates Models 2 and 4 July 2017 Updates

2017-07-03

9996

2017-03-03

April 2017 Update of the Hospital Outpatient Prospective Payment System (OPPS)

2017-04-03

10005

2017-02-24

Instructions for Downloading the Medicare ZIP Code File for July 2017

2017-07-03

9969

2017-02-24

Clarification of Payment Policy Changes for Negative Pressure Wound Therapy (NPWT) Using a Disposable Device and the Outlier Payment Methodology for Home Health Services

2017-03-27

9898

2017-02-24

Updates to Pub. 100-04, Chapters 12, 17 and 23 to Correct Remittance Advice Messages

2017-05-25

9906

2017-02-24

Healthcare Provider Taxonomy Codes (HPTCs) April 2017 Code Set Update

2017-07-03

9869

2017-02-24

Common Edits and Enhancements Modules (CEM) Code Set Update

2017-07-03

9870

2017-02-24

Remittance Advice Remark Code (RARC), Claims Adjustment Reason Code (CARC), Medicare Remit Easy Print (MREP) and PC Print Update

2017-07-03

9878

2017-02-17

Episode Payment Model Operations

2017-07-03

9916

R3733CP 2017-03-08 R168SOMA R3726CP

R14P229

R3729CP R170DEMO R3728CP R3722CP R233BP R3721CP R3723CP R3724CP R3725CP R169DEMO R1798OTN R13P299 R3719CP

2017-02-17

ICD-10 Coding Revisions to National Coverage Determinations (NCDs)

2017-07-03

9982

2017-02-17

Provider Reimbursement Manual Part 2, Provider Cost Reporting Forms and Instructions, Chapter 29, Form CMS-222-92

2017-02-17

N/A

2017-02-15

Quarterly Update to the Medicare Physician Fee Schedule Database (MPFSDB) - April CY 2017 Update

2017-04-03

9977

Updated as of March 16, 2017 12

AMRPA Magazine April 2017

ECRI INSTITUTE REPORT IDENTIFIES TEN LEADING PATIENT SAFETY DANGERS FOR 2017

o help guide organizations in deciding where to focus their patient safety efforts, the Emergency Care Research Institute (ECRI Institute) has developed the Top 10 Patient Safety Concerns for Healthcare Organizations for 2017. The report highlights concerns from health information management, clinical decision support and new oral anticoagulants to long-standing concerns, such as test result reporting and follow-up and unrecognized patient deterioration. The ECRI report also includes strategies that hospitals and other providers can use to address these concerns in their own facilities. The list and associated guidance is intended to help healthcare organizations identify priorities and aid them in creating corrective action plans. The full list includes, in order: 1. Information management in electronic health records (EHRs). 2. Unrecognized patient deterioration 3. Implementation and use of clinical decision support (CDS) 4. Test result reporting and followup 5. Antimicrobial stewardship 6. Patient identification 7. Opioid administration and monitoring in acute care 8. Behavioral health issues in nonbehavioral health settings 9. Management of new oral anticoagulants 10. Inadequate organization systems or process to improve safety and quality ECRI Institute relied on its Patient Safety Organization (PSO) event data, concerns raised by healthcare provider

organizations and expert judgment to select the topics for the 2017 list. The list is compiled each year to help providers identify areas for improvement and innovation. Since 2009, when ECRI Institute PSO began collecting patient safety events, the PSO and partner PSOs have received more than 1.5 million event reports and reviewed hundreds of root cause analyses. ECRI Institute encourages organizations to adapt relevant patient safety interventions to meet each care setting. Although not all patient safety concerns on the list apply to all healthcare organizations, many are relevant to a range of settings across the continuum of care.

Highlights: â&#x20AC;˘

Although not all patient safety concerns on the list apply to all healthcare organizations, many are relevant to a range of settings across the continuum of care.

to the Executive Brief at www.ecri.org/ PatientSafetyTop10. Additional resources throughout the report are available to members of ECRI Institute PSO and to ECRIâ&#x20AC;&#x2122;s Healthcare Risk Control program. For the press release please see: https:// w w w. e c r i . o rg / p re s s / P a g e s / To p - 1 0 Patient-Safety-Concerns-for-2017.aspx

Possible Solutions ECRI noted that patient deterioration can be deadly when not properly monitored and that organizations can adapt protocols used for stroke patients to patients with other illnesses to better manage their conditions. Simulations can also offer practice in recognizing the signs of deterioration, and providers can develop tools, such as recognition criteria, to help doctors monitor patient conditions better. The report states that organizations should educate patients and the general public about antibiotic stewardship and make use of physician advocates who can lobby their peers for more effective prescribing practices. Providers can also standardize electronic identification tools and wristbands in order to prioritize. Patient identification practices and barcode systems were also effective strategies. Healthcare organizations should also consider developing behavioral health response teams to handle patients with these conditions. ECRI Institute is providing free access

MEDPAC RELEASES ANNUAL SPRING REPORT TO CONGRESS; PROPOSES 5 PERCENT CUT FOR REHABILITATION HOSPITALS AND UNITS By Carolyn C. Zollar, MA, JD, Executive Vice President of Government Relations and Policy Development, AMRPA

he annual spring events are blooming in Washington. Along with some early flowers and right on the Ides of March, the Medicare Payment Advisory Commission (MedPAC) released its annual March report to Congress, which generally addresses the payment adequacy of the various Medicare providers from acute care hospitals to home health agencies (HHAs). MedPAC found that inpatient rehabilitation hospital and units (IRH/Us) are not present in all parts of the country; however, other providers such as skilled nursing facilities (SNFs) may provide services. MedPAC continues to makes several unnerving statements such as: “it is not clear when IRF care is necessary or beneficial for a given patient or when another, lower cost post-acute care provider (such as a skilled nursing facility) could provide appropriate care.”

occupancy rate was 65 percent – up from 64 percent.

As for the number of IRH/Us, the total increased between 2013 and 2014 and remained stable in 2015 at 1,182 providers. See Table 10-4 below. Rehabilitation units constituted about 78 percent of providers in 2015 with the remaining 22 percent being freestanding hospitals. Yet, units accounted for only 52 percent of discharges; in that they tend to be smaller than the rehabilitation hospitals. Over time, the number of rehabilitation units has declined, as well. Nonprofit rehabilitation hospitals, rehabilitation hospitals and forprofit entries have all increased. Between 2014 and 2015, the number of units dropped by 8 percent, and freestanding hospitals increased by 21 percent. In 2015, 26 providers closed; yet, 31 new hospitals and units opened. The average 2015 14

As for volume, the number of cases grew 1.5 percent to 381,000 cases between 2014 and 2015. See Table 10-5 below. Managed Care in Inpatient Rehabilitation Hospitals and Units The Commission examined the use of IRH/Us’ services under the Medicare fee for service (FFS) and Medicare Advantage (MA) programs. It found a considerably different picture between the patients in each program, as follows: •

The use rate of IRH/Us among the population was more than double that of the MA patients;

•

MA patients were younger than FFS patients;

•

Both populations had similar functional scores on admission;

•

MA patients were more complex than FFS patients;

•

MA patients’ average length of stay (ALOS) was more than a day longer;

•

MA enrollees were more than likely to be admitted to a rehabilitation unit; and

•

The mix of patients was different, with 36 percent of the MA patients being admitted with a stroke vs. 20 percent for FFS patients. See Tables 10-6 and 10-7 in the report.

Quality of Care The Commission examines three indicators: risk-adjusted change in functional and cognitive status during

the IRH/Us stay, rates of discharge to the community and to SNFs and rates of readmission. Between 2011 and 2015, there were small improvements in all three measures. Between 2011 and 2015, the national average rate of risk-adjusted potentially avoidable readmissions during the stay declined from 2.9 to 2.4 percent – a 0.5 percent improvement. MedPAC saw a similar pattern in potentially avoidable readmissions within 30 days after discharge from an IRH/U. Between 2011 and 2015 the national average declined from 5 percent to 4.2 percent. MedPAC found that between 2011 and 2015, the community discharge rate increased from 74.0 percent to 76.0 percent. The rate of discharge to SNFs was essentially unchanged at 6.8 percent in 2015, from 6.9 percent in 2014. With respect to functional change in 2015 the mean motor functional independent measure (FIM) score was 23.8; the cognitive score was 3.9. The risk-adjusted gain for both scores increased from 2011 to 2015. MedPAC did note that since payment is based in part on functional and cognitive change, providers may have incentives to improve their documentation and coding to account for a patient’s needs. It further stated “reported gains in motor and cognitive function may be overstated.” MedPAC also examined variation in quality measures across quintiles. These are summarized in Table 10-10. Access to Capital As in past years MedPAC concluded that most rehabilitations units had adequate access to capital through their acute care hospitals. As for freestanding providers, AMRPA Magazine April 2017

MedPAC assumed there to be adequate access in that one of the largest chains continues to expand. Medicare Payment and Providers’ Costs As noted above MedPAC continues to scrutinize IRH/U margins. In 2015, Medicare payments exceeded marginal costs by 20.5 percent for rehabilitation units and 41.4 percent for rehabilitation hospitals. MedPAC noted that from 1999 to 2014, the cumulative increase in payments per case outpaced the increase in costs per case. During this period, payment per case grew 57 percent vs. 44 percent in the growth of cost per case. Between 2014 and 2015, payment per case increased 2.7 percent while cost per case increased 1.2 percent. The Commission also examined standardized costs, which it summarized in Table 10-11 below. MedPAC also summarized costs and providers by type of providers in Table 10-12 below. As the result of its analyses, MedPAC concluded that margins among the different types of providers vary widely. It stated that the aggregate Medicare margin rose from 12.4 percent to 13.9 percent. In 2015, rehabilitation units had an average margin of 2.0 percent, and rehabilitation hospitals had an average margin of 26.7 percent. Hospitals and units with less than 25 beds tended to have negative margins. See Table 10-13.

and assessment and coding practices may contribute to differences in profitability across providers.

freestanding hospitals. They include the following: •

Units are less stringent in their cost control;

•

Units are likely to achieve fewer economies of scale than rehabilitation hospitals;

•

Units have lower occupancy rates vs freestanding hospitals (62 percent vs. 69 percent);

•

Units tend to admit more stroke cases than hospitals. (23 percent vs. 17 percent);

•

Units are more likely to be nonprofit and therefore less “focused on controlling costs to maximize returns to investors”;

•

Units achieve fewer economies of scales because they are usually smaller and have fewer cases;

•

Units’ occupancy rates are lower than freestanding rehabilitation hospitals (59 percent vs. 68 percent);

•

MedPAC continues to believe that several factors may underlie the differences in margins between rehabilitation units and

Units have a higher number of cases with extraordinarily high costs. In 2015 13 percent of unit cases were outlier cases vs. 2 percent of freestanding IRFs; and Units have a different mix of cases. They have a higher share of stroke patients (23 percent vs. 17 percent) and admitted a larger number of fractures of the lower extremity (13 percent vs. 11 percent). MedPAC notes however that patient selection

After its extensive analysis of margins, MedPAC recommended a 5 percent decrease in the Fiscal Year 2018 update for inpatient rehabilitation hospitals and units and expansion of the outlier pool from 3 percent to 5 percent. Note, however, that MedPAC’s recommendations are just that, and Congress must act on them for them to take effect. As always, stay tuned. In January, AMRPA sent a letter to MedPAC objecting to the then-proposed payment reduction. We noted that in addition to the Medicare data relied on by the Commission, the IRF PPS 2017 rate-setting files released by CMS reveal additional pertinent findings about the adequacy of Medicare payments to IRFs. Our analysis found that in FY 2015: •

473 IRFs, or 42 percent of IRFs with available data, had negative Medicare margins (below 0 percent);

•

50 percent of IRFs had margins below 5.0 percent;

•

58 percent of rural IRFs had margins below 5.0 percent;

•

65 percent of IRFs had margins below 13.9 percent, MedPAC’s aggregate Medicare margin for all IRFs in FY 2015; and

•

The median margin for all IRFs was 4.9 percent.

TABLE 10-4 The number of for–profits and freestanding IRFs continue to grow average annual charge Type of IRF

Share of Medicare FFS discharges

2004

2006

2008

2010

2013

2014

2015

20042006

20062013

20132015

All IRFs

100%

1,221

1,225

1,202

1,179

1,161

1,177

1,182

0.2%

-0.8%

0.9%

Urban

1,024

1,018

1,001

981

977

1,013

1,020

-0.3

-0.6

2.2

Rural

197

207

201

198

184

164

162

2.5

-1.7

-6.2

Freestanding

217

221

233

243

251

262

0.0

1.6

3.8

Hospital based

1,004

1,005

981

946

926

920

0.2

-1.3

0.3

Nonprofit

768

758

738

729

677

681

-0.7

-1.6

0.3

For profit

292

299

291

294

322

338

352

1.2

1.1

4.6

Government

161

168

173

156

155

149

138

2.2

-1.1

-5.6

Note: IRF (Inpatient Rehabilitation Facility), FFS (Fee-for-Service). The number of facilities is for the calendar year. The large decline in the number of rural IRFs between 2013 and 2014 is due primarily to changes in the core-based statistical areas, as defined by the Office of Management and Budget, which determine whether geographic areas are considered urban or rural. Because of these changes, 19 IRFs that were previously considered rural are now designated as urban. Source: MedPAC analysis of Provider of Services data and Medicare Provider Analysis and Review data from CMS. 15

TABLE 10-5 The number of IRF cases and the coverage payment for case increased in 2015 average annual change 2004

2006

2008

2010

495,349

404,633

356,312

FFS beneficiaries

135.6

111.9

Payment per case

$13,290

ALOS (in days) Users

Number of cases

2013

2014

2015

20042008

20082014

20142015

359,307 373,118

375,590

381,339

-7.9%

0.9%

1.5%

100.4

99.7

99.3

101.0

-7.2

-0.2

1.7

$15,380

$16,646

$17,085 $18,258

$18,632

$19,116

5.8

1.9

2.6

12.7

13.0

13.3

13.1

12.8

12.7

1.3

-0.6

-0.7

449,362

369,269

323,897

325,506 337,704

338,887

343,562

-7.9

0.8

1.4

Cases per 10,000 99.1 12.9

Note: IRF (inpatient rehabilitation facility), FFS (fee-for-service), ALOS (average length of stay). Source: MedPAC analysis of Medicare Provider Analysis and Review data from CMS.

In the letter, AMRPA stated: â&#x20AC;&#x153;In analyzing payment versus cost as a definition of margins, it is clear that a 5 percent payment cut would have dramatic consequences for the majority of IRFs. Given that the median margin for IRFs is 4.9 percent, an aggregate 5 percent cut to the payment system is unduly harmful to more vulnerable providers due to the wide variations in margins at the individual provider level.â&#x20AC;? Medicare Payment Update for Other PAC Providers The Commission recommended several changes to updates for other postacute care providers. It recommended no updates in 2018 for long-term care hospitals (LTCHs), hospice, ambulatory care centers (ACCs) and skilled nursing facilities. In addition to IRH/Us, MedPAC is recommending a 5 percent reduction for home health agencies, too. In addition, it is recommending freezing the payment rates for SNFs for two years while the payment system is revised, then having the Secretary report whether any additional adjustments are needed. For home health, it recommends rebasing the payment system and eliminating therapy visits as a factor in payment. It also references its view that all the post-acute care providers should be brought into a unified payment system, which is covered in another article in the magazine. As for other sectors, such as acute hospitals and physicians, it recommends the updates in current law. The report can be accessed at www. medpac.gov.

TABLE 10-11 IRFs with fewer beds had much higher standardized cost per discharge, 2015

TABLE 10-12 Low standardized costs led to high margins for both hospitalbased and freestanding IRFs in 2015 Lowest Highest cost cost

Type of IRF

Median standardized cost per discharge

All IRFs

$14,960

Hospital based

15, 847

Freestanding

11,436

Nonprofit

15,574

For profit

12,960

Median Medicare margin

Government

16,601

Urban

14,608

Rural

17,724

Number of beds

Characteristic Median cost per discharge All

$11,124 $19,443

Hospital based

11,756

19,434

Freestanding

10,610

19,881

All

28.5%

-22.0%

Hospital based

22.1

-22.0

Freestanding

32.0

-25.0

Number of beds

Occupancy rate

74%

49%

Case-mix index

1.30

1.23

1 to 10

18,085

11 to 24

16,169

25 to 64

13,619

Share of facilities that are:

65 or more

11,621

Hospital based

36%

94%

Note: IRF (inpatient rehabilitation facility). Cost per discharge is standardized for differences in area wages, mix of cases and prevalence of high-cost outliers, short-stay outliers and transfer cases. Government-owned facilities operate in a different financial context from other facilities, so their costs are not necessarily comparable.

Freestanding

Nonprofit

For profit

Government

Source: MedPAC analysis of Medicare cost report and Medicare Provider Analysis and review data from CMS.

Urban

Rural

AMRPA Magazine April 2017

NEED HELP WITH MEDICARE AUDITS AND APPEALS? Powers Pyles Sutter & Verville has successfully assisted inpatient rehabilitation hospitals and units in thousands of coverage appeals resulting from payment denials by Recovery Audit Contractors, Medicare Administrative Contractors, Zone Program Integrity Contractors, and other Medicare auditors. The Powers team of experienced attorneys works with all provider types but specializes in IRF claims. We understand both the legal standards for IRF payment and the errors that auditors typically make when reviewing IRF claims. We can help you navigate through the fivelevel Medicare appeals process. Our services are tailored to the particular needs of each IRF and can include any of the following: • • • • • • • • • • •

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April 2017 For18more information, please contact Deb Curington at dcurington@firminc.com AMRPA or at Magazine (217) 753-1190

GAO: HHS NEEDS TO IMPROVE ITS EFFORTS AT INCREASING EHR USE IN POST-ACUTE CARE SETTINGS By Mimi Zhang, Policy and Research Associate, AMRPA

n a report released on February 27, 2017, the Government Accountability Office (GAO) concluded that the Department of Health and Human Services (HHS) lacks a comprehensive plan to meet its goal of promoting electronic health records (EHR) use by post-acute care (PAC) providers. “Without a comprehensive plan to address these issues, HHS risks not achieving its goal of increasing EHR use and the electronic exchange of health information in post-acute care settings,” the GAO said. Accordingly, the GAO recommends that HHS reevaluate its current efforts to encourage the adoption of EHRs and develop a comprehensive plan for the adoption of EHRs and electronic information exchange in PAC settings. As AMRPA members know, PAC providers including inpatient rehabilitation hospitals and units did not receive Medicare’s “meaningful use” funds to incentivize their EHR adoption, unlike acute care hospitals. Timely and accurate exchange of health information is critical for successful transitions of care from acute care to PAC, and technology like EHRs could help to improve quality and reduce costs. The GAO conducted the report by interview stakeholders including experts on EHR in PAC settings and key HHS staff. The report was requested by a group of Senators, including Health, Education, Labor and Pension (HELP) Committee Chairman Lamar Alexander, Sen. John Thune, Sen. Richard Burr, Sen. Mike Enzi and Sen. Pat Roberts. According to the GAO, despite the

potential benefits of EHRs, available evidence suggests the EHR use is limited in PAC settings. The Office of the National Coordinator for Health Information Technology (ONC) reported in a 2013 Issue Brief “that there are no national data on EHR adoption and the electronic exchange of health information across the different types of post-acute care settings.” ONC also noted that in a 2009 survey of some post-acute settings, specifically inpatient rehabilitation hospitals and long-term acute care hospitals, showed EHR adoption rates of six percent and four percent, respectively.” Furthermore, the ONC cited a 2014 survey of PAC providers in New York found that only 25 percent reported receiving an electronic document when a patient transitioned to their care. In contrast, most acute care hospitals possessed EHRs in 2015. The GAO identified five specific factors affecting PAC EHR adoption and electronic information exchange: •

•

Cost: Stakeholders stated that providers often have limited financial resources to cover the initial cost of an EHR and noted that additional costs may be incurred for exchanging information and for EHR maintenance. According to those interviewed, PAC providers generally do not see an immediate financial benefit from adopting or using EHRs and, therefore, may not perceive the utility of an EHR to be worth the cost. Implementation of standards: Stakeholders expressed concerns with the variability in implementation of health data standards and the difficulty of finding health information relevant to post-acute

Highlights: GAO recommends that: •

•

HHS evaluate the effectiveness of its key efforts to increase the use of EHRs and electronic information exchange; and Comprehensively plan for how to achieve the department’s goal regarding the use of EHRs and electronic information exchange in post-acute care settings. care providers when this information is exchanged. Other stakeholders added that vendors may implement standards differently, which creates inconsistencies when exchanging health information electronically.

•

Workflow disruptions: Stakeholders stated that implementation of EHRs requires PAC providers to change their daily work activities or processes, which can be disruptive.

•

Technological challenges: Stakeholders stated that they face technological challenges, such as having EHRs that are not capable of electronically exchanging health information. Interviewees noted significant differences between the workflow of PAC settings and acute care settings that affect the use of EHRs. As an example, implementing an EHR is more complicated in a PAC setting because multiple services – such as pharmacy and radiology – are not located in a single location, which increases the challenge to interoperability. In contrast, an acute 19

care hospital often has all providers in a single location. •

Staffing: Stakeholders noted that a lack of staff with expertise to manage EHRs and high staff turnover result in a constant need to train staff to use the technology.

According to GAO, all of the interviewed

stakeholders cited cost as a major factor discouraging EHR adoption.

effectiveness of HHS’s efforts to promote EHR use.

The report also mentioned that the ONC plans to survey PAC providers to assess EHR adoption rates and activities that demonstrate ways to electronically exchange health information. These surveys, however, would not assess the

The full report can be viewed here: https:// www.gao.gov/products/GAO-17-184.

NEW AHRQ TOOLKIT AIMS TO REDUCE CAUTI AND OTHER HAIS IN LONG-TERM CARE FACILITIES

he Agency for Healthcare Research and Quality (AHRQ) has released a new evidencebased toolkit that aims to reduce catheter-associated urinary tract infections (CAUTIs) and other hospital acquired infections (HAIs) in long-term care (LTC) facilities. The toolkit is based on the experiences of more than 450 LTC facilities across the country that participated in an AHRQ-funded project and reported significant CAUTI rate reductions. The new toolkit uses strategies from AHRQ’s Comprehensive Unit-based Safety Program (CUSP), which has reduced CAUTIs as well as central lineassociated bloodstream infections (CLABSI) in hospitals. The toolkit combines clinical interventions and best practices for infection prevention with behavior change elements that promote leadership involvement, improvement in safety culture, teamwork, communication and sustainability. Its user-friendly educational modules, guides and tools can help facilities advance from the “what to do” to the “how to do it.” The modules are customizable to local needs and include: Using the Comprehensive LongTerm Care Safety Toolkit; Senior Leader Engagement; Staff Empowerment; Teamwork and Communication; Resident and Family Engagement; and Sustainability.

The toolkit is organized into three main sections – Implementation, Sustainability and Resources – which facilities can use to implement an improvement project to reduce CAUTI and other HAIs. Each section contains guides, tools, slide sets and videos to support implementation. All materials are publicly available and downloadable online and can be modified to meet local facility needs and criteria. The Toolkit provides resources to enhance leadership and staff engagement, teamwork and safety culture, in order to facilitate reliable use of evidencebased practices. The toolkit includes instructional materials and resources in infection prevention best practices (e.g., foundational infection prevention strategies, CAUTI prevention, antibiotic stewardship), resident and family engagement, quality improvement and sustainability to guide facilities through implementation of an improvement project to reduce HAIs. The toolkit’s resources were used by LTC facilities that participated in the AHRQ Safety Program for Long-Term Care: HAIs/CAUTI, which successfully reduced CAUTI rates.

Highlights: •

The toolkit’s resources were used by LTC facilities that participated in the AHRQ Safety Program and successfully reduced CAUTI rates.

practices. The project brought together subject matters experts from partner organizations and approximately 500 participating long-term care facilities across the country. The Toolkit To Reduce CAUTI and Other HAIs in Long-Term Care Facilities, Agency for Healthcare Research and Quality (AHRQ) is available at http://www.ahrq. gov/professionals/quality-patient-safety/ quality-resources/tools/cauti-ltc/index. html

The toolkit was developed during a 3-year project – the AHRQ Safety Program for Long-Term Care: HAIs/CAUTI – which involved a national quality improvement collaborative designed to reduce CAUTIs and enhance patient safety culture and

AMRPA Magazine April 2017

15TH ANNUAL AMRPA EDUCATIONAL CONFERENCE & EXPO

OCTOBER 23-25, 2017 • SWISSÔTEL NEVER STOP IMPROVING THE REHAB INDUSTRY! Save the date for the 15th Annual AMRPA Educational Conference and Expo, October 23-25, 2017 in Chicago!

Questions? Please contact Rachel Koresky, AMRPA Member Services Coordinator, at rkoresky@amrpa.org. 21

EDUCATION , COMMUNICATION, PARTICIPATION & OPERATIONAL ASSISTANCE

JOIN TODAY!

In addition to advocacy and representation, AMRPA offers a wide range of member benefits and services designed to provide its members with the knowledge and tools to navigate the challenges facing medical rehabilitation providers and adapt to the changing federal regulatory environment. AMRPA keeps members informed of all significant policy, legislative and regulatory issues affecting medical rehabilitation providers through: OFF THE RECORD (OTR) Members receive “Off the Record,” a weekly electronic newsletter, which provides up-to-date summary information on legislative and regulatory issues affecting Medical Rehabilitation providers. MAGAZINE Members receive a subscription to the monthly AMRPA Magazine which reports on Medical Rehabilitation issues and trends including in-depth analysis of legislative, regulatory and operational issues affecting Medical Rehabilitation providers. ACTION ALERTS AMRPA issues Action Alerts to its Members which are specialized, timely electronic alerts and/or calls to action designed to mobilize national member responses to critical issues requiring Congressional action. ADVOCACY SUPPORT AMRPA promotes grassroots efforts among its Members on critical legislative issues. AMRPA counsel and staff are also available to provide support and assistance to members in grassroots efforts to educate members of Congress. MEMBERSHIP CALLS Members are invited to participate on AMRPA-sponsored “Membership Calls” which are held as needed and are designed to provide timely communications with members on emerging developments and issues affecting the field. SOCIAL MEDIA GROUP SITE on LINKEDIN AMRPA Members receive access to AMRPA’s social media group on LINKEDIN which is designed to provide information and opportunities for members to network with each other. ANNUAL FALL EDUCATIONAL CONFERENCE, LEADERSHIP FORUM, REGIONAL SEMINARS and WEB- BASED SEMINARS Educational sessions are held throughout the year and are designed to provide the latest intelligence, information and facts about “hot” issues impacting medical rehabilitation providers.

WEBSITE (www.amrpa.org) For members only and includes complete access to all information, presentations, documents, materials, data and communications on the AMRPA website. COMMITTEES Members are eligible to serve and participate on the Committees of the AMRPA Board of Directors and are invited to increase their involvement in shaping AMRPA’s Advocacy Agenda. BOARD OF DIRECTORS Members are eligible to be nominated to serve on AMRPA’s Board of Directors. TOOLS AMRPA researches, develops and distributes specialized toolkits to support and assist members with key issues, such as the Medicare Appeals Process. STAFF AMRPA staff are available to facilitate access to information or expertise on a broad range of issues and business challenges. MEMBERSHIP SURVEYS Regular surveys of the membership are conducted on key issues of interest or concern as well as for assessing the overall level of satisfaction with AMRPA benefits and services. eRehabData® AMRPA sponsors the highly-acclaimed eRehabData® for use by the field, produces regular reports on data trends, distributes data analysis of national and regional trends in medical rehabilitation to all members and incorporates eRehabData trends and analysis in all AMRPA advocacy and educational initiatives. RESEARCH AMRPA promotes the funding of research to advance the field and to develop evidence-based practice and public policy through the ARA Research Institute.

AMRPA: Working Together Toon Preserve Access To Medical Rehabilitation · Maggie Rachel Ramirez · Koresky, Vice President of Membership Services · 347-573-3732 · mramirez@amrpa.org For information AMRPA membership, please contact AMRPA Member Services Coordinator,

at 202-591-2469 or rkoresky@amrpa.org. 22

35 AMRPA Magazine April 2017

LATEST RESEARCH FINDINGS NEW ALZHEIMER’S ASSOCIATION REPORT SHOWS GROWING COST AND IMPACT OF ALZHEIMER’S DISEASE

bout 5.3 million people age 65 and older have Alzheimer’s dementia in the U.S., many of whom are receiving treatment in long-term care (LTC) facilities. The Alzheimer’s Association’s 2017 Alzheimer’s Disease Facts and Figures report provides an in-depth look at the latest national statistics and information on Alzheimer’s prevalence, incidence, use and costs of care, caregiving and mortality and related dementias. The report conveys the impact of Alzheimer’s on individuals, families, government and the nation’s health care system. Since its release in 2007, the report has become the preeminent source covering the broad spectrum of Alzheimer’s issues. The Special Report will also appear in the April 2017 issue of Alzheimer’s & Dementia. Findings The report shows that, for the first time, total annual payments for health care, long-term care and hospice care for people with Alzheimer’s and other dementias have surpassed a quarter of a trillion dollars ($259 billion). Additionally, despite support from Medicare, Medicaid and other sources of financial assistance, individuals with Alzheimer’s or other dementias still incur high outof-pocket costs. The average per-person out-of-pocket costs for seniors with Alzheimer’s and other dementias are almost five times higher than average per-person payments for seniors without these conditions ($10,315 versus $2,232). More than 15 million Americans provide unpaid care in the form of physical, emotional and financial support for the estimated 5.5 million Americans of all ages living with Alzheimer’s dementia. In 2016, Alzheimer’s caregivers provided an estimated 18.2 billion hours of unpaid care – a contribution to the nation valued at $230.1 billion. More than one, out of three (35 percent) caregivers for people with Alzheimer’s or another dementia report that their health worsened due to care responsibilities, compared with one out of five (19 percent) caregivers for older people without dementia. Also, depression and anxiety are more common among dementia caregivers than among people providing care for individuals with certain other conditions. Notably, the report found that of all dementia caregivers who

provided care for more than 40 hours a week (69 percent) or those providing care to someone with dementia for more than five years (63 percent) were women. Although deaths from other major causes have decreased, new data from the report shows that deaths from Alzheimer’s have significantly increased. Between 2000 and 2014, deaths from heart disease decreased 14 percent, while deaths from Alzheimer’s increased 89 percent. Prevalence, Incidence and Mortality •

Of the estimated 5.5 million Americans with Alzheimer’s dementia in 2017, 5.3 million people are age 65 and older and approximately 200,000 are under age 65 (younger-onset Alzheimer’s).

•

Barring the development of medical breakthroughs, the number of people age 65 and older with Alzheimer’s dementia may nearly triple from 5.3 million to 13.8 million by 2050.

•

Every 66 seconds, someone in the U.S. develops Alzheimer’s dementia. By mid-century, someone in the U.S. will develop the disease every 33 seconds.

•

Approximately 480,000 people – almost half a million – age 65 or older will develop Alzheimer’s dementia in the U.S. in 2017.

•

Two-thirds of Americans over age 65 with Alzheimer’s dementia (3.3 million) are women.

•

Alzheimer’s is the sixth-leading cause of death in the U.S. and the fifth-leading cause of death for those ages 65 and older.

•

Alzheimer’s remains the only disease among the top 10 causes of death in America that cannot be prevented, cured or even slowed.

Cost of Paid and Unpaid Care •

Total national cost of caring for those with Alzheimer’s and other dementias is estimated at $259 billion (excludes unpaid caregiving), of which $175 billion is the cost to Medicare and Medicaid alone.

•

Total payments for health care, long-term care and hospice care for people with Alzheimer’s and other dementias are projected to increase to more than $1.1 trillion in 2050 (in 2017 dollars). 23

Advances in Alzheimer’s Research The researchers’ state that advances in research that may allow for the diagnosis of Alzheimer’s disease before symptoms of Alzheimer’s begin. By using biomarkers, a measurable indicator within the body that can be used to accurately and reliably indicate the presence of disease, researchers and clinicians will be able to improve how to identify and diagnose Alzheimer’s disease. Researchers are investigating several promising indicators as biomarkers for Alzheimer’s disease, including brain imaging of amyloid plaques, changes in brain volume and measures of tau and amyloid in spinal fluid. The report outlined several implications in using biomarkers for the diagnosis of Alzheimer’s disease: •

•

It will have a marked impact on Alzheimer’s research. Broader use of biomarkers will allow researchers to identify which individuals choose to enroll in clinical trials to test new therapies and to enroll individuals with the diseaserelated brain changes that potential treatments are targeting. Biomarkers also allow researchers to monitor the effects of these treatments. It will change how we estimate incidence and prevalence of Alzheimer’s. It will add a population of individuals who are currently not included in estimates, such as people with mild cognitive impairment (MCI) who have Alzheimer’s-related

biomarkers and therefore MCI due to Alzheimer’s (a proportion that may be as high as 56 percent of those with MCI), and it will remove a population that currently is included – people with dementia but no Alzheimer’s biomarkers (estimated to be as high as 30 percent of the dementia population). •

It will allow all stakeholders to understand the true number of people living with this disease. Epidemiologists, demographers and biostatisticians will use newly informed prevalence and incidence estimates to calculate other statistics, such as the numbers of people providing care and support for someone with the disease, the costs of care, and mortality, which will inform policy making and resource allocation.

Research to validate biomarkers for Alzheimer’s disease is one of the most active areas in Alzheimer’s science. By using these biomarkers, researchers and clinicians would be able to distinguish between Alzheimer’s disease and other causes of dementia, as well as identify earlier diagnosis and treatment. The complete Alzheimer’s Association Facts and Figures report, including the accompanying special report can be viewed http:// www.alz.org/facts/. For more information, visit the Alzheimer’s Association at alz.org.

Medicare Participating Post-Acute Care Providers as of 2017 Type of Provider

1996

1998

2000

2002

2004

2006

2008

2010

2012

2013

2014

2015

2016

2017

Skilled Nursing Facility (SNF)

15,553

15,035

14,825

14,792

14,929

15,006

15,041

15,067

15,129

15,685

15,712

15,189

15,233

15,279

Home Health Agency (HHA)

9,886

9,386

7,528

6,935

7,341

8,587

9,382

10,945

12,121

12,384

12,612

12,463

12,318

12,184

Rehabilitation Facilities (Hospital & Units)

1,048

1,097

1,128

1,295

1,359

1,229

1,195

1,189

1,161

1,162

1,161

1,172

1,179

1,186

Long Term Care Hospitals (LTCH)

185

207

253

273

317

393

428

437

436

430

424

427

424

Comprehensive Outpatient Rehabilitation Facilities (CORF)

403

550

516

544

638

627

517

401

295

268

234

219

207

196

Source: Centers for Medicare & Medicaid Services (CMS) OSCAR Database As of February 2017, CMS

AMRPA Magazine April 2017

PREPARING FOR A MEDICAL NECESSITY REVIEW By Lisa Werner, MBA, MS, CCC-SLP

ast month, I mentioned that there has been an influx of requests for charts by external reviewers looking for potential overpayment. This month, I thought I would address when you should consider having an outside review of your records to assist your organization in recognizing potential compliance issues and implementing operational changes to improve your chances of timely payment. Before you bring in an external consultant to review your records, conduct a selfaudit. Begin with an analysis of your outcomes data. Starting at the facility report level will give you a general idea of where you stand with your reimbursement and quality indicators. For those diagnostic groups that you see most frequently, take another step into the data and look at the rehab impairment category level data on the RIC report to see how the reimbursement and quality indicators look when isolated to unit or patient type. Notice whether or not you are at least meeting or exceeding your expectation for capture of the functional independence measure motor subscale at admission. Review the individual functional independence measure elements to see if all meet or exceed your expectation for capturing burden of care. You should analyze the capture of tiering comorbidities at the facility and RIC levels, as well, and compare your coding of these conditions to national practice patterns. Take note of codes that you do not see in your own tiering. You will certainly want to evaluate your documentation for evidence of these

and any additional conditions being treated but not clearly documented. Evaluate your length of stay so you can validate that your facility’s effectiveness in case management and resource utilization is based on the documentation provided in your record. It should be clear in the chart what the discharge plan is and how each discipline is managing the patient’s stay to ensure that goals are met and the patient is prepared for a safe discharge. Next, take the impressions that you developed from the data analysis to the charts. Review each document in the chart according to the list provided by CMS for the pre-admission screen, post-admission assessment, overall plan of care and patient care conference. Develop a checklist of all of these items from the final rule, listed by section. The checklist should include both content items and signatures with timeframes as follows: Requirements Screening •

for

treatment in the IRF •

Anticipated discharge destination

•

Any anticipated treatments

•

Other information relevant to the care needs of the patient

•

Completed by a qualified clinician

•

Completed or updated within 48 hours of admission

•

Signed, dated, and timed by the rehab physician within 48 hours of admission

Requirements for a Post-Admission Physician Evaluation •

Completed by a rehabilitation physician within 24 hours of admission

•

Documents the patient’s status on admission to the IRF

•

Compares it to that noted in the preadmission screening documentation

•

Begins development of the patient’s expected course of treatment that will be completed with input from all of the interdisciplinary team members in the overall plan of care

•

Identifies any relevant changes that may have occurred since the preadmission screening

•

Provides guidance as to whether or not it is safe to initiate the patient’s therapy program

Pre-Admission

Patient’s prior level of function (prior to the event or condition that led to the patient’s need for intensive rehabilitation therapy)

post-discharge

•

Expected level of improvement

•

Expected length of time needed to reach that level of improvement

•

Evaluation of the patient’s risk for clinical complications

•

Supports the medical necessity of the IRF admission

•

Conditions that caused the need for rehabilitation

•

Combination of treatments needed (one of which must be PT or OT)

•

Expected frequency and duration of

Includes a documented history and physical exam, as well as a review of the patient’s prior and current medical and functional conditions and comorbidities

•

Describes the clinical rehabilitation complications for which the patient is at risk and the specific plan to avoid them

Requirements for Rehabilitation Program •

The patient required an intensive rehabilitation program

Describes the adverse medical conditions that might be created due to the patient’s comorbidities and the rigors of the intensive rehabilitation program, as well as the methods that might be used to avoid them

•

Met the industry standards of 3 hours of therapy per day at least 5 days per week

•

Treatments began within 36 hours from midnight of the day of admission to the IRF

Predicts the functional goals to be achieved within the medical limitations of the patient

Requirements for the Interdisciplinary Team •

Requirements for an Individualized Overall Plan of Care •

Estimated length of stay

•

Patient’s medical prognosis

•

Anticipated functional outcomes

•

Anticipated discharge destination from the IRF

•

Anticipated interventions that support the medical necessity of the admission

•

Based on patient’s impairments, functional status, complicating conditions, and any other contributing factors. Should include these details about the PT, OT, SLP, and/or P/O therapies expected: o Intensity (# of hours/day) o Frequency (# of days/week) o Duration (total # of days during IRF stay)

Requirement for Evaluating the Appropriateness of an IRF Admission / Inpatient Rehabilitation Facility Medical Necessity Criteria •

Rehab physician conducted face-toface visits with the patient at least 3 days per week throughout the patient’s stay;

•

Assessed the patient both medically and functionally (with an emphasis on the important interactions between the patient’s medical and functional goals and progress);

•

Modified the course of treatment as needed to maximize the patient’s capacity to benefit from the rehabilitation process.

Intensive

At a minimum one member of each of the following disciplines was present: o Rehab physician with special training and experience in rehab services; o RN with specialized training or experience in rehabilitation; o A social worker or case manager (or both); and o A licensed or certified therapist from each therapy discipline involved in treating the patient

•

Team conference was held at least once per week, during which the team: o Assessed the individual’s progress towards the rehabilitation goals; o Considered possible resolutions to any problems that could impede progress towards the goal; o Reassessed the validity of the rehabilitation goals previously established; and o Monitored and revised treatment plan as needed

An external reviewer can conduct the initial assessment for you, but I believe that it is important to know where you stand before an external reviewer looks at your records. An auditor lends impartial review of the findings against a checklist but also brings no knowledge of how the information makes its way to the record that may lead you to overlook missed items based on the understanding that they are present in intent. Someone with experience with chart review and IRF-PAI validation will be able to tell you what he or she sees in your records as both exemplary performance and opportunities for improvement, as well as provide recommendations for improvement. The recommendations are likely the most valuable part of an external audit, since they give you the chance to reevaluate your documentation or operational practices in a new light with the benefit of hearing from someone outside the organization about best practices they have seen. It is also an excellent opportunity to see how you are doing with documenting to support your reimbursement as determined through IRF-PAI coding. Whether you decide to conduct your own chart review or you use an external auditor, remember to include regular chart reviews for medical necessity and compliance as part of your ongoing performance improvement plan. The information should be used to make sure you have a realistic expectation of how your records will fare when CMS or an insurance provider audits you. No one likes a surprise when it comes to overpayment.

the

Evaluate your charts for the presence of these items and the overall sense of whether or not the stay was reasonable and necessary. Review at least 10 charts to identify items that are chronically not provided and any that may have been overlooked in an isolated case. Both findings should be addressed with the staff, but those that occur in isolated cases may best be handled one-to-one, while the chronically missed items will likely need closer review for process or operational changes.

AMRPA Magazine April 2017

AMRPA SUBMITS COMMENT LETTER TO CMS ON 2018 MEDICARE ADVANTAGE AND PART D ADVANCE NOTICE AND DRAFT CALL LETTER Editor’s Note: On March 3, 2017, the American Medical Rehabilitation Providers Association (AMRPA) submitted comments to the Centers for Medicare and Medicaid Services (CMS) regarding the proposed updates to the Medicare Advantage (MA) and Part D programs through CMS’s 2018 Advance Notice and Draft Call Letter. The letter primarily addresses access to inpatient rehabilitation hospitals and units (IRH/Us) under the MA program. AMRPA requested that CMS instruct MA plans to not use proprietary guidelines in PAC placement decisions, and instead apply CMS’s service coverage regulations to ensure that MA plans are not discriminating against certain Medicare beneficiaries and restricting their access to medical rehabilitation. The complete letter is provided below and is available on www. amrpa.org. March 3, 2017 Patrick Conway, M.D. Acting Administrator Centers for Medicare and Medicaid Services Department of Health and Human Services P.O. Box 8016 Baltimore, MD 21244-8016 Delivered electronically to AdvanceNotice2018@cms.hhs.gov

Improper Use of Non-Medicare Guidelines by Medicare MA Plans We request that CMS instruct Medicare Advantage (“MA” or Part C”) plans to apply CMS’s coverage regulations governing IRFs. CMS must ensure that MA plans are not designing benefits to discriminate against beneficiaries or discourage enrollment by inhibiting access to services or steering particular subsets of Medicare beneficiaries to specific coverage options. In our experience, many MA plans do not use Medicare IRF coverage criteria when determining coverage for IRF care. Instead, these plans improperly apply private, proprietary decision support tools, including Milliman and InterQual guidelines (“non-Medicare guidelines”), to make their decisions as to which post-acute care setting is covered for each patient. In this way, patients are often denied access to medically necessary and clinically appropriate inpatient rehabilitation hospital services. CMS should instruct MA plans to cease using Milliman, InterQual and any other guidelines to determine IRF coverage and, instead, rely on the same coverage requirements applicable to Medicare beneficiaries under the fee-for-service program. The Milliman and InterQual guidelines do not govern Medicare IRF coverage and, yet, many MA plans routinely deny coverage based on these non-Medicare guidelines. This practice diverts Medicare beneficiaries to less appropriate post-acute care settings, such as skilled nursing facilities, than they need and are entitled to under the Medicare program, potentially risking the health and functional potential of Medicare beneficiaries.

Dear Acting Administrator Conway: On behalf of the American Medical Rehabilitation Providers Association (AMRPA), we submit this letter regarding the proposed updates to the Medicare Advantage (MA), Part C and Part D programs through the 2018 Advance Notice and Draft Call Letter released by the Centers for Medicare and Medicaid Services (CMS). This letter primarily addresses access to medical rehabilitation services, particularly access to inpatient rehabilitation hospitals and units (IRFs), under the Medicare Advantage program. AMRPA members provide rehabilitation services across the spectrum of health care settings including inpatient rehabilitation hospitals and units (referred to by Medicare as inpatient rehabilitation facilities, or IRFs), hospital outpatient departments, and settings independent of the hospital, such as comprehensive outpatient rehabilitation facilities (CORFs), rehabilitation agencies, skilled nursing facilities (SNFs) and Long Term Acute Care Hospitals (LTACHs). AMRPA members help patients maximize their health, functional skills, and independence, so they can participate in society by returning to home, work, or an active retirement. As part of furnishing care in the IRF setting, AMRPA members provide intensive, comprehensive, hospital-based, rehabilitation therapy programs coupled with medical management of the patient. Specific services include physical and occupational therapy, speech language pathology, and prosthetic/orthotic services, to name a few.

When Medicare beneficiaries are injured, become seriously ill, or require surgery, they often require medical rehabilitation to regain functional losses. The acute hospital stay is often just the first step toward recovery and returning to a more normal life in the community. Patients frequently require a course of hospital-based rehabilitation that is intensive, rehabilitation physician directed and coordinated, and delivered by a multidisciplinary team. Other post-acute care settings generally provide less intensive and less coordinated rehabilitation services without the nursing care skills and hours or physician availability of the IRF. IRFs strive to continue the healing process and deliver the medical and nursing care needed and also to improve the quality of life of patients recovering from surgical procedures, strokes, spinal cord injuries, brain injuries, amputations, hip fractures, and many other conditions that decrease a person’s ability to function, live independently, and perform common daily activities, such as walking, using a wheelchair, bathing, or eating. For example, a patient who sustains a stroke may be left with permanent neurological deficits and need to overcome or adapt to physical, language and cognitive impairments. A lower extremity amputee must heal from a traumatic injury while being fitted and trained to ambulate with a prosthetic limb. A patient who was critically ill for a prolonged period of time and unable to be active or even get out of 27

a hospital bed will lose muscle mass and will have difficulty walking and performing basic self-care tasks. CMS has developed detailed coverage regulations for Medicare IRF coverage. The same coverage rules apply to both Part A feefor-service and Part C Medicare Advantage beneficiaries. Medicare regulations are clear that MA plans must provide “all Medicarecovered services.” These covered services include “all services that are covered by Part A,” which are “basic benefits” available to MA enrollees. MA plans must comply with all Medicare coverage regulations and manuals. Medicare manuals are equally clear. The Medicare Managed Care Manual (“MMCM”) states that a MA “plan must provide enrollees in that plan with all Original Medicarecovered services.” The MMCM instructs that “[i]f the item or service is covered by Original Medicare under Part A or Part B, including Part B prescription drugs, then it must be offered.” Therefore, MA plans must determine IRF coverage using the Part A regulations at 42 C.F.R. § 412.622 and MBPM chapter 1. The Milliman Care Guidelines (“MCG”) are a proprietary decision support tool that includes inpatient admission guidelines. InterQual is also proprietary and includes clinical care guidelines. InterQual includes criteria for assessing level of care, including hospitalbased rehabilitation. CMS has not adopted either set of these proprietary guidelines, and they are not referenced in any Medicare IRF regulations or manuals. Indeed, CMS has repeatedly declined to adopt Milliman, InterQual, or any guidelines other than its own coverage criteria. In a 2001 Federal Register preamble, a commenter criticized a CMS coverage regulation as inconsistent with InterQual, and CMS declined to defer to InterQual. In 2004, CMS expressly refused to adopt InterQual criteria for IRF coverage, stating that the criteria “are proprietary.” In 2007, CMS described InterQual criteria as mere “guidelines.” In 2010, a commenter requested that CMS remove certain procedures from the “inpatient only list” because Milliman Care Guidelines designated the procedures safe in an outpatient setting. In response, CMS refused, stating “we remain convinced that these procedures could be safely performed only in the inpatient setting.” Despite this consistent and very clear guidance from CMS, rehabilitation hospitals and units, as well as physicians who practice in these settings, report that a number of MA plans routinely deny IRF coverage based on Milliman, InterQual or their own guidelines without applying Medicare IRF coverage rules. We are hearing that this problem has grown severe in the recent past. Our beneficiary and clinical member organizations inform us that a growing number of Medicare managed care cases are being diverted from an IRF level of care based on these guidelines (e.g., Milliman, InterQual) that have not been sanctioned or adopted by the Medicare program. In a recent AMRPA survey, IRFs reported that between 30 and 80 percent of patients referred to their hospitals are denied by MA plans. Preadmissions denials constituted 90 percent of denials from MA plans, with InterQual or Milliman guidelines being cited as the reason for denial 56 percent of the time. Some MA plans reportedly informed IRFs that medical reviewers are required to send all patients wherever the Milliman guidelines dictate. Other MA plans even told IRFs that SNFs are the only option for all of their enrollees.

In fact, Medicare data validates this anecdotal information. In its March 2016 report, the Medicare Payment Advisory Commission (MedPAC) stated that in 2014, Medicare MA patients obtained access to IRF care at a rate of only 36% that of similar Medicare Part A feefor-service patients. There is no basis in fact for this major discrepancy other than Medicare Advantage plans imposing more restrictive coverage and admission criteria for IRF care than Original Medicare requirements. AMRPA is concerned that MA plans may be overriding the clinical judgment of treating physicians and the medical rehabilitation team and ignoring Medicare coverage regulations. MA plans must approve IRF admissions if there is a “reasonable expectation” that the patient will need multidisciplinary therapy, intensive rehabilitation, and supervision by a rehabilitation physician.” MA plans may not use proprietary decision support algorithms to deny IRF coverage to Medicare beneficiaries with no regard to binding Medicare regulations. Such algorithms are impermissible “rules of thumb” that may not be used to deny IRF coverage. The use of non-Medicare guidelines by some MA plans jeopardizes the health care outcomes of Medicare beneficiaries. Beneficiaries are put in the position of contesting the MA plan’s coverage denial, potentially delaying the needed rehabilitation to which they are entitled. Many beneficiaries are not aware that they can contest the MA plans’ initial determination to deny IRF care, and they may lack the social or financial supports necessary to appeal. The most vulnerable beneficiaries are at risk of being denied access to rehabilitation services that meet their medical and functional needs without even knowing that these decisions are being made behind the scenes, based on non-Medicare guidelines, even when they would otherwise quality for IRF coverage under Medicare coverage rules. Request for Modification to the Call Letter We therefore urge CMS to revise its Call Letter to include explicit instructions to Part C, Medicare Advantage plans to cease using Milliman, InterQual, or similar guidelines to determine coverage of inpatient hospital rehabilitation and, instead, rely on the same coverage requirements applicable to Medicare beneficiaries under the Part A fee-for-service program (i.e., Original Medicare). *********** If you have any questions regarding our concerns, please contact Carolyn Zollar, J.D., Executive Vice President for Government Relations and Policy Development (czollar@amrpa.org / 202-2231920), or Peter Thomas, J.D., Washington Counsel (Peter.Thomas@ powerslaw.com / 202-466-6550). Sincerely,

Bruce M. Gans, MD Chair, AMRPA Board of Directors Executive Vice President and Chief Medical Officer, Kessler Institute for Rehabilitation National Medical Director for Rehabilitation, Select Medical

AMRPA Magazine April 2017

AMRPA SEEKS CLARIFICATION FROM CMS ON PRACTITIONERS AND SUPPLIERS USE OF PROSTHETICS AND CUSTOM ORTHOTICS Editor’s Note: On March 13, 2017, the American Medical Rehabilitation Providers Association (AMRPA) submitted comments to the Centers for Medicare and Medicaid Services (CMS) on the“Establishment of Special Payment Provisions and Requirements for Qualified Practitioners and Qualified Suppliers of Prosthetics and Custom Fabricated Orthotics (CMS-6012-P)” proposed rule. In the letter, AMRPA urges CMS to clarify in the final rule that BIPA Section 427 only applies to items and services billed to Part B of the program, and not to Part A providers. The complete letter is provided below and is available at www.amrpa.org. March 13, 2017 Patrick Conway, M.D. Acting Administrator Centers for Medicare and Medicaid Services U.S. Department of Health and Human Services Attention: CMS-6012-P P.O. Box 8013 Baltimore, MD 21244-8013 Dear Acting Administrator Conway: The American Medical Rehabilitation Providers Association (AMRPA) submits these comments on Section 427 of the Benefits Improvement and Protection Act of 2000 (BIPA 2000), CMS-6012-P. AMRPA supports the basic premise of the rule; that practitioners and suppliers of custom-fabricated orthoses and prostheses should have the training, education and credentialing necessary to provide quality orthotic and prosthetic (O&P) care and that Medicare should not pay for services rendered by those who are not qualified. This not only protects Medicare beneficiaries but also protects the integrity of the Medicare program from fraud, waste and abuse. AMRPA members provide rehabilitation services across the spectrum of health care settings including inpatient rehabilitation hospital and units (referred to by Medicare as inpatient rehabilitation facilities (IRFs)), hospital outpatient departments (HOPDs), and settings independent of the hospital, such as comprehensive outpatient rehabilitation facilities (CORFs), rehabilitation agencies, and skilled nursing facilities (SNFs). Many of our members employ professionals for whom services are billed under Part B of the Medicare program, including physicians, psychologist, physical therapists, occupational therapists and speech and language pathologists. AMRPA members help patients maximize their health, functional skills,

independence, and participation in society so they can return to home, work, or an active retirement. In particular, our members treat individuals with limb loss and those with multiple sclerosis, traumatic brain injury, spinal cord injury, stroke, and other conditions that require the use of prostheses and orthoses. Orthotics and prosthetics are part of the continuum of rehabilitation services that meets the needs of many of the patients we treat, both for musculoskeletal conditions (amputations, arthritis, spine pain, etc.) and neurological problems (stroke, brain injury, spinal cord injury and many others). IRFs routinely work with patients who require highly customized O&P devices. Prosthetists and orthotists are an important part of the rehabilitation team which also includes rehabilitation physicians (typically physiatrists), physical therapists, occupational therapists, rehabilitation nurses and a wide range of other specialty providers. BIPA Section 427 prohibits Medicare payment for prosthetics and custom-fabricated orthotics unless they have been (1) furnished by a qualified practitioner and, (2) fabricated by a qualified practitioner or qualified supplier at a facility that meets criteria the Secretary determines appropriate. We view this proposed rule as applying to services provided to Part B Medicare beneficiaries who receive custom-fabricated orthoses and prostheses from practitioners and suppliers who submit claims to the Durable Medicare Equipment Medicare Administrative Contractors (DME MACs). The rule itself suggests this to be the case but does not clearly address this issue. We believe the rule may have unintended consequences if applied to Part A, institution-based providers, such as inpatient rehabilitation hospitals and units. We are reimbursed under the Inpatient Rehabilitation Facility Prospective Payment System (IRF-PPS) where orthotics and prosthetics are not separately billed to Part B of the program. We therefore urge CMS to clarify in the final rule that BIPA Section 427 only applies to items and services billed to Part B of the program, and not to Part A providers. Certain types of orthoses and prostheses are provided in the inpatient rehabilitation hospital and unit, but in recent years, the length of stay of patients in these settings has shortened to the point that patients with new amputations are often fit with preparatory prostheses or pre-fabricated orthoses in the short term and later more definitive prostheses or orthoses as they recover, or the limb heals, while outpatients. In addition, BIPA Section 427 does not apply to pre-fabricated or off-the-shelf orthoses. It only applies to custom-fabricated

orthoses and prostheses. Thus, even if CMS were to refrain in the final rule from clarifying that the rule does not apply to Part A providers, it would not have a major impact on inpatient rehabilitation hospitals and units, nor would it achieve the dual aims that it seeks to accomplish. To the extent our membersâ&#x20AC;&#x2122; outpatient therapy clinics and other settings of care may bill Part B on occasion for the durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) they provide to Medicare beneficiaries, this rule is more relevant to us. As such, we are interested in clarifying the standards that will be applied to health care professionals who are not orthotists and prosthetists, but who may provide and bill Medicare Part B for custom-fabricated orthoses provided incident to their practices. For instance, some physicians provide orthoses that are impacted by this rule to their patientsâ&#x20AC;&#x2122; incident to patientsâ&#x20AC;&#x2122; physician services. Some physical and occupational therapists provide some custom-fabricated orthoses to their patients in the scope of their practice. For example, Certified Hand Therapists have a separate credential to provide certain custom-fabricated hand orthoses. Some physical therapists provide custom-fabricated knee orthoses or ankle-foot orthoses to their patients in the course of their practice. There is no significant evidence to suggest that this practice harms patients, and it could be described as patient-centered care in that patients are not forced to go to another provider to obtain non-complex orthotic care that could be provided

by other qualified practitioners and suppliers. Therefore, while AMRPA believes that all practitioners and suppliers of customfabricated orthoses and prostheses should be specifically trained, educated, and credentialed to provide these services, the final rule should clarify that CMS will make a determination as to whether certain professionals are, indeed, qualified to provide these services by virtue of their existing training, education and credentialing. In this manner, CMS will both protect patient care and the integrity of the Medicare program. Thank you for the opportunity to submit these comments. We look forward to publication of a final rule that includes important clarifications to the proposed rule as described in this letter. If you have any questions, please contact Carolyn Zollar at (202) 223-1920 or czollar@amrpa.org. Sincerely,

Bruce M. Gans, MD Chair, AMRPA Board of Directors Executive Vice President and Chief Medical Officer, Kessler Institute for Rehabilitation National Medical Director for Rehabilitation, Select Medical

AMRPA Magazine April 2017

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AMRPA Magazine April 2017