AMRPA Magazine March 2017 by AMRPA

March 2017 • Vol. 20, No. 3

IT’S PERSONAL

Staying above the fray in a contentious political climate

Volume 20, Number 3

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 Martha Kendrick, JD Partner, Akin Gump Strauss Hauer & Feld LLP Peter Thomas, JD Counsel to the AMRPA Consumer and Clinical Affairs Committee, Principal, Powers Pyles Sutter & Verville, PC Lisa Werner, MBA, MS, SLP Director of Consulting Services for FlemingAdvanced Outcomes Design Carolyn Zollar, MA, JD Executive Vice President for Government Relations and Policy Development, AMRPA Mimi Zhang Policy and Research Associate, AMRPA Lovelyn Robinson Editorial and Research Assistant, AMRPA

AMRPA Magazine, Volume 20, Number 3. Published monthly by the American Medical Rehabilitation Providers Association. 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 ÂŠ2017 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.

Letter from the Chair........................................................................................... 3 AMRPA Legislative Update................................................................................. 4 GAO Reports: Additional Improvements Are Needed in the Oversight of Medicaid Managed Long-Term Services Program ...................................... 7 OIG Conducts Review of Medicare Administrative Contractor Information Security Program for FY 2015............................................................................. 8 CMS Finalizes Changes to the Medicare Administrative Appeals Process....................................................................... 10 Study Findings May Lead To Better Decision-Making in Predicting Recovery Time for Sports Concussions......................................... 13 ASPE Issues First Report on Special Risk Factors and Impact on Value-Based Purchasing Programs................................................................... 14 National Quality Forum Issues Recommendations to CMS on 2017 IRF QRP Performance Measures............................................................. 19 Latest Research Findings.................................................................................. 23 The Auditors Are Back in Town........................................................................ 25 AMRPA Submits Comments to CMS Regarding Proposed Refinements to Pressure Ulcer Measure.......................................................... 27 Judge Orders Further Relief for Medicare Beneficiaries in Need of Skilled Care......................................................................................... 29 Collaborative Research Project Examines Financial Impact of CMS Transition EDS Based Payments ........................................................... 30

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AMRPA Magazine March 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

“AMRPA should be your closest ally in helping to defend medical rehabilitation, and that means memberships, paying dues, participating in meetings and activities, and being an active member of our network.”

hat an extraordinary time we are having as a field, a nation and a global community. The very fabric our our health care system is at risk of being ripped apart if poorly thought out “repeal, repair and replace” efforts to undo the Affordable Care Act are initiated; our ability to care for persons with catastrophic disabling illnesses and injuries will be put in jeopardy, depending on what changes in programs, regulations and payment methods are implemented; our standing as a nation that welcomes immigrants is being fundamentally challenged; our very rule of law and the balance of the three pillars of our government (administration, legislation and judiciary) is under question; and the world is looking at us and wondering what the heck has happened? AMRPA is here to strategize, promote and protect our nation’s rehabilitation hospitals and units and their capacity to care for the people who uniquely need our services. But we don’t live in a vacuum, unaffected by matters such as immigration laws and the economy. So where are the boundaries of issues that AMRPA needs to focus on and the concerns of our individual members and the people who make up those organizations? Put another way, if you feel compelled to advocate for our field, does that adversely affect your freedom to advocate for other issues (women’s rights, diversity, the size and scope of the Federal government, etc.)? I am certain that there is a broad range of opinions and views on many of the issues in today’s headlines, so it is clear to me that AMRPA needs to “stick to its knitting” and focus on the core of our concerns for rehab hospitals and units, and not the larger and more potentially contentious issues that are the topic of so many tweets and blogs. Personally I feel passionate about our professional concerns, but I also have strong views and beliefs about the other matters in front of our country. So how can I (and all of you) balance your interest and desire to speak out on both rehab issues and other societal matters but not

confuse them? Can we be effective as individuals in sharing our views in both arenas? I think so, and here’s how I suggest it can be done: •

When meeting or communicating with someone in government, don’t go out of the core topic; if you have a Representative visiting your hospital to educate them on rehab matters, don’t succumb to the temptation of branching your conversation to issues like constitutional law.

•

Make a clear differentiation in your verbal, written or other communications as to if you are speaking your mind as a private citizen or as a representative of an organization.

•

Include as targets of your communication government individuals you agree with and those whom you don’t (hoping to moderate their views), and remember, as my mother used to say to me, you can catch more flies with honey than vinegar, so try to find ways to a “yes” rather than pick a fight.

•

Find and support organizations that share your views, and offer to volunteer, make donations, and bring other like-minded folks along. This can include political entities like PACs, other organizations and associations, and informal community networks.

•

Remember that you are looking for areas of common and shared beliefs and values, not seeking to further polarize yourself or others; also, keep your friends close and your “enemies” closer.

AMRPA should be your closest ally in helping to defend medical rehabilitation, and that means memberships, paying dues, participating in meetings and activities, and being an active member of our network.

AMRPA LEGISLATIVE UPDATE

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

espite considerable backlash from Senate Democrats for President Trump’s nominee for Health and Human (HHS) Services Secretary, Rep. Tom Price (R-GA) was confirmed by the Senate with a party line vote of 52-47 in the early morning hours of February 10th. Democrats held the Senate floor for the full 30 hours permitted to them in an effort to slow-

• • • •

As you may recall, both chambers passed Reconciliation measures in early January

ACA with patient-centric reforms that may include Medicaid reform, expansion of health savings accounts (HSAs), tax credits and high risk pools. President Trump has also walked back on his promise of an immediate repeal and replace plan, stating “Maybe it’ll take until sometime in next year.” House Speaker Ryan was quick to correct the President’s statement assuring

With the Senate focused on confirming Trump’s Cabinet picks, the House is beginning to focus on how to replace the Affordable Care Act. On February 10, the Senate voted 52-47 to confirm Rep. Tom Price (R-GA) as Health and Human Services Secretary, and hours later was sworn in by Vice-President Mike Pence. The Senate Finance Committee held a hearing on February 16 to consider the nomination of Seema Verma as Administrator of the Centers for Medicare and Medicaid Services (CMS). On February 15, the Centers for Medicare and Medicaid Services released the highly anticipated proposed rule on ACA Market Stabilization.

walk the vote, raising concerns about Rep. Price’s trades in health stocks and his opposition to the Affordable Care Act (ACA). Now officially at the helm of the Department, Secretary Price will lead the drive to dismantle Obamacare, which could include a series of Administrative actions. One of the Secretary’s first moves was to meet with key Senate Republicans on Capitol Hill to discuss Obamacare repeal. In the near term, Department released a much anticipated regulation focused on stabilizing the Exchanges, which was less extensive than some earlier reports had suggested. Detailed discussion of the regulation is below. The Secretary will also have to grapple with what is known as the President’s “2 for

1” Regulatory Order which requires the elimination of two existing regulations for each new proposed regulation, and review several regulations affected by Trump’s Executive Order of a 60day regulatory “freeze” of new or pending regulations while the Trump Administration reviews them.

that instructed that the four Committees of jurisdiction in the House and Senate report Budget Reconciliation legislation to repeal the ACA by January 27. As expected, they missed their deadline to act, but according to House Speaker Ryan (R-WI) the House is aiming to mark-up their Reconciliation package within the next few weeks and bring it to the floor by late February. They will likely use the Reconciliation bill that President Obama vetoed last year as the basis, as well as include some additional replacement measures. The House GOP’s “A Better Way” policy blueprint will be a central focus for replacement options. There has also been a shift in Republican messaging that repeal will “repair” the

that repeal would be accomplished in 2017. Republicans have yet to coalesce around a specific timeline, but are feeling the pressure internally from the House Freedom Caucus and externally from the insurance industry who need clarity by the end of the first quarter on replacement details in order to prepare and submit 2018 premiums. On February 15, Humana announced its withdrawal from participation in Obamacare in 2018. President Issues ACA Executive Order One of President Trump’s first actions after being sworn in as the 45th President of the United States was to issue an Executive Order to federal agencies to “waive, defer, grant exemptions

AMRPA Magazine March 2017

from, or delay the implementation of any provision or requirement [of the Affordable Care Act]…that would impose a fiscal burden on any State, or a cost, fee, tax, penalty, or regulatory burden on an individual.” The Executive Order also directs agencies to provide relief to the states, as well as “waive” regulations or costs on “makers of medical devices, products, or medications.” Although the Executive Order does not legally halt any of the policies from continuing in its current state, such as the individual mandate or the medical device excise tax, it does give a clear signal from the new Trump Administration on its intent to dismantle the ACA to the extent possible, using their executive authority, without necessarily waiting for Congress. The Order does confirm that the new Administration will follow the Administrative Procedure Act, which requires federal agencies to go through a formal rulemaking process to implement major changes. We are closely following how the various agencies interpret the Executive Order to see what its full impact will be. Committees Begin ACA Replacement Hearings…Slowly House Republicans on the Energy and Commerce Committee have been actively considering a number of draft bills that reform and stabilize the health insurance markets. The proposals include a bill requiring plans to offer coverage regardless of pre-existing conditions and legislation that would require “continuous coverage.” The Subcommittee on Health, chaired by Rep. Michael C. Burgess, M.D. (R-TX), also marked-up two bills seeking to limit Medicaid eligibility for lottery winners (HR 829) and annuities (HR 181). The House Ways and Means Committee, which will play a major role in developing legislation to replace the ACA, is expected to notice an ACA-focused hearing in late February or early March. On February 1, the Senate Health, Education, Labor & Pensions (HELP) Committee held a hearing specific to health insurance market stabilization. The Senate Finance Committee has been focused on holding confirmation hearings for Trump’s Cabinet picks, but is expected to turn to health reform in the near future.

The House Committees of jurisdiction are expected to release replace plans by February 16, which will likely resemble the House GOP’s “A Better Way” proposal. While deliberations over the final details of the replacement plan are ongoing, the package could contain policies promoting consumer-directed care through expanded use of health savings accounts, individual tax credits to make insurance premiums more affordable and other reforms. Republican Leadership are also pressing to include Medicaid reform as part of the replace package, which may revise the federal matching system for states’ Medicaid programs with a per-capita cap policy. There is still disagreement among the different factions of the Republican party on how to proceed with ACA repeal, which could stall the legislative process, forcing Republicans to rely on newly confirmed Secretary Price to begin chipping away at the health law through administrative action. There is further concern that including Medicaid reforms will not pass muster under the Senate’s strict parliamentarian rules. A mark-up of repeal legislation in the House could come as early as February 28. ACA Replacement Legislation Introduced Since the 115th Congress commenced, Republicans have begun to formally introduce ACA “replacement” legislation. On January 23, Senators Bill Cassidy (R-LA) and Susan Collins (RME) introduced The Patient Freedom Act (S. 191). The bill repeals the ACA’s individual and employer mandates but keeps consumer protections such as the prohibition of pre-existing condition exclusions and the provision allowing young adults to stay on their parents’ health plans until age 26. The legislation gives states three options: 1) Keep the ACA’s coverage expansion “as is;” 2) Choose a new “market-based system” that would protect those with pre-existing conditions and continue funding equal to 95% of federal premium tax credits and cost-sharing subsidies, deposited into health savings accounts for patients; or 3) Design an alternative solution without federal assistance. Sen. Paul (R-KY) introduced the “Obamacare Replacement Act” on January 24 that repeals key ACA

provisions, including the individual and employer mandates and the essential health benefits that insurers must cover. The bill would change the rules for patients with pre-existing conditions, offering them a two-year open enrollment period to obtain coverage after enactment of the legislation. The plans also seeks to “equalize” the tax treatment of health insurance; specifically, Sen. Paul would replace the tax exclusions now given to employer-sponsored insurance with a universal deduction on income and payroll taxes that would offer the same level of benefit, regardless of the type of insurance. The bill would also provide states with flexibility in designing their Medicaid plans and no longer require federal approval for any waivers. On January 31, Senators Ron Wyden (DOR) and John Cornyn (R-TX) introduced separate Resolutions and legislation, as required by statue, that formally halts and repeals the Independent Payment Advisory Board (IPAB) established under the ACA. The IPAB, a controversial provision that created an independent board tasked with finding Medicare savings has yet to be triggered. Sen. John Cornyn (R-TX) has also introduced a similar measure. FY 2018 Budget Outlook As expected, President Trump was unable to release a Fiscal Year (FY) 2018 Budget by the first Monday in February, which is not unusual for a new President just a few months into his Administration. White House official are working on an executive order related to the federal budget, as the Senate works to move South Carolina Republican Rep. Mick Mulvaney, the President’s pick for Director of the Office of Management and Budget (OMB) through the confirmation process. During his confirmation hearing, Rep. Mulvaney expressed his intent to submit an outline of the Budget in February and complete the FY 2018 Budget in April or May. The Senate confirmed Rep. Mulvaney on February 16, by a a vote of 51-49. Trump Administration Proposes ACA Marketplace Stabilization Policies On February 15, 2017, the Centers for Medicare and Medicaid Services (CMS) released a highly anticipated proposed

rule that aims to improve the risk-pool and help stabilize the individual and small group markets. They regulation proposes several Marketplace “fixes” including, changing the enrollment window that requires individual to enroll in coverage prior to the beginning of the year, increasing pre-enrollment verification of those enrolling during special enrollment periods, and allowing insurers the right to refuse enrollees in new plans if they have not paid their premiums during the prior year. The proposal also changes the required actuarial levels, which would provide insurers with increased flexibility on their plan offerings. The Administration stated that changes proposed “would result in broader choices and more affordable coverage.” Comments must be received by March 7, 2017.

CMS Proposes Slight Increase in 2018 MA Rates On February 1, the Centers for Medicare and Medicaid Services (CMS) announced it is proposing a slight increase in Medicare Advantage (MA) payment rates of 0.25% on average for 2018, down from 0.85% last year. After factoring in changes in risk scores, the expected change in revenue is 2.75%. Comments on the proposed Advance Notice and Draft Call Letter are due by March 3, 2017. Some observers perceive these rates will be bolstered further in the Final Rule.

Spring Executive Forum and lobbying on Capitol Hill – Members of Congress need to be educated about the unique role of rehabilitation hospitals in the continuum of care. Now, that Secretary Price has been confirmed we are preparing for a very active regulatory and Congressional agenda. We are pleased to assist with scheduling meetings and assisting you in any way. This is a great opportunity to receive first-hand Trump Administration and Capitol Hill experience. Most importantly, AMRPA needs your voice in the fray! Regards, Martha M. Kendrick

*** Please plan today to come to Washington, D.C. on March 20-21 to participate in our

THINK ABOUT IT…ARE YOU RECEIVING YOUR OFF THE RECORD (OTR), ACTION ALERTS AND OTHER EMAIL FROM AMRPA? On January 1, AMRPA changed vendors for the distribution of its Off the Record, Action Alerts, and other email communication and we want to make sure you aren’t missing these important messages. Our email analytics show that a few institutions’ servers are blocking AMRPA email, probably without knowing it. Don’t miss important deadlines, events or AMRPA news, whitelist (or add to your safe sender list) the following elements to ensure AMRPA email gets to you. • • •

Whitelist the return email address: info@amrpa.org Whitelist these domains: @informz.net and @informz.ca (Informz is our new email system) Whitelist the IP address that these emails are coming from: 64.128.232.14

If you know there are multiple AMRPA contacts at your institution, ask your IT staff to help you do this whitelisting at the institutional level so that your colleagues can receive the same benefit! Keep your membership up to date – current members receive AMRPA magazine, the weekly enewsletter and other benefits – renew today if you haven’t already.

AMRPA Magazine March 2017

GAO REPORTS: ADDITIONAL IMPROVEMENTS ARE NEEDED IN THE OVERSIGHT OF MEDICAID MANAGED LONG-TERM SERVICES PROGRAM

he Government Accountability Office (GAO) conducted a review of Medicaid managed long-term services and supports (MLTSS) payment structures and its oversight by the Centers for Medicare and Medicaid Services (CMS). The report is entitled: “Medicaid Managed Care: Improved Oversight Needed of Payment Rates for Long-Term Services and Supports”. Providing long-term services and supports in Medicaid is a significant challenge, due to the vulnerability and service needs of beneficiaries, as well as the high cost of care. An increasing number of states have Medicaid MLTSS programs, which can be used to expand community-based care and lower costs. However, whether these programs are an effective strategy depends, in part, on the design of the payment structures. Therefore, the GAO examined: (1) How selected states structured their financial incentives, and (2) CMS policies and procedures for overseeing states’ payment structures. GAO reviewed relevant federal regulations, guidance and internal control standards. For six the states selected for variation in location and experience (AZ, DE, FL, KS, MN, and TX), GAO reviewed the contracts and rate certifications most recently approved by CMS, the terms and conditions set by CMS for the programs, and other payment documentation. GAO also interviewed CMS officials and Medicaid officials from the selected states. Out of these six states with Medicaid MLTSS programs, five set clear financial incentives in their payment rates for managed care organizations (MCO) to provide care in the community versus in an institution. However, most of the selected states did not opt to link payments or penalties to MCO performance on MLTSS goals. These goals, which include enhancing the provision of community-based care, are developed by states and CMS.

GAO’s Findings • GAO found that CMS’s oversight of state payment structures was limited. GAO found CMS does not consistently require states to report on whether the payment structures—including payment rates, incentive payments and penalties— are achieving MLTSS goals. For example, CMS required three of the selected states to report on the provision of communitybased care, but did not require any such reporting from the other three states. According to federal internal control standards, federal agencies should use quality information to achieve agency objectives. Without requiring information on states’ progress toward MLTSS goals, GAO states that CMS will continue to pay billions of dollars to states without knowing if states have sufficient incentives for community-based care. • GAO identified risks with CMS’s oversight of the data used to set MLTSS rates, specifically the appropriateness and reliability of those data. Under federal regulations, MLTSS rates must be appropriate and adequate. To the extent that states use data that are not appropriate and reliable to set rates, the resulting rates could be too low, which could provide an incentive for MCOs to reduce care, or too high, which results in more federal spending than necessary. - Appropriateness concerns: GAO found issues with the appropriateness of data used by two of the selected states. For example, one state used data from 2010 and 2011 to set rates for 2015. Beginning in July 2017, CMS will require rates to be based on the three most recent and complete years of data. Although CMS will allow exceptions, it has not specified criteria for what situations would warrant exceptions. Without specifying criteria, CMS’s requirements may not sufficiently minimize the number of states using data

GAO’s Findings: • •

CMS’s oversight of state payment structures was limited. Evidence of reliability issues with managed care encounter data remains.

of questionable appropriateness to set MLTSS rates. - Reliability concerns: GAO and the HHS Office of Inspector General (OIG) previously found evidence of reliability issues with managed care encounter data, which are the primary record of managed care services and a key source of data used to set MLTSS rates. In addition, GAO’s review of state documentation indicated variation in selected states’ procedures for validating the reliability of their encounter data, specifically the completeness and accuracy of the data. Beginning in July 2017, CMS will require states to validate encounter data, but CMS has not issued guidance with minimum standards for state procedures. Without minimum standards for state validation efforts, it is unclear that CMS’s efforts will sufficiently minimize the risk of encounter data being incomplete or inaccurate. GAO’s Recommendations GAO recommended that CMS (1) require all states to report on progress toward achieving MLTSS program goals, (2) establish criteria for what situations would warrant exceptions to federal standards for data used to set rates, and (3) provide guidance with minimum standards for validating encounter data. HHS concurred with GAO’s recommendations. For the complete report please see http://www.gao.gov/assets/690/681946.pdf

OIG CONDUCTS REVIEW OF MEDICARE ADMINISTRATIVE CONTRACTOR INFORMATION SECURITY PROGRAM FOR FY 2015

he Department of Health and Human Services Office of the Inspector General (OIG) issued its annual Review of Medicare Contractor Information Security Program Evaluations for Fiscal Year 2015. The purpose of the review is to assess the scope and sufficiency of Medicare Administrative Contractor (MAC) information security program evaluations and report its results. According to the report, the Centers for Medicare and Medicaid Services (CMS) paid approximately $547 billion on behalf of more than 56 million Medicare beneficiaries in FY 2015. CMS contracts with MACs to administer Medicare benefits paid on a fee-for-service basis. In FY 2015, nine entities served as MACs for Medicare Parts A and B to process and pay Medicare fee-for-service claims. Background The Social Security Act (the Act), as modified by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), requires that each Medicare administrative contractor (MAC) have its information security program evaluated annually by an independent entity. These evaluations must address the eight major requirements listed below in the Federal Information Security Management Act of 2002 (FISMA). 1. periodic risk assessments; 2. policies and procedures to reduce risk; 3. system security plans; 4. security awareness training; 5. periodic testing of information security controls; 6. remedial actions; 7. incident detection, reporting, and response; and

8. continuity of operations for information technology (IT) systems. CMS added a ninth area for testing starting in FY 2015: 9. privacy. The Act also requires information security control evaluations but does not specify the criteria for these evaluations. The Inspector General, Department of Health and Human Services (HHS), must submit annual reports to Congress on the results of these evaluations and include assessments of their scope and sufficiency. CMS Evaluation Process for Fiscal Year 2015 CMS developed agreed-upon procedures (AUPs) for the program evaluation on the basis of the requirements of section 1874A(e)(1) of the Act, FISMA, information security policy and guidance from the Office of Management and Budget (OMB) and the National Institute of Standards and Technology (NIST), and the Government Accountability Office’s (GAO) Federal Information Systems Controls Audit Manual (FISCAM). In FY 2015, the independent auditors, PricewaterhouseCoopers (PwC), under contract with CMS, used the AUPs to evaluate the information security programs at the nine entities that served as MACs. Some of the entities had multiple contracts with CMS to fulfill their responsibilities as Medicare Parts A and B MACs, home health and hospice MACs, and durable medical equipment (DME) MACs. As a result, PwC issued 12 separate reports. The results of the MAC information security program evaluations are presented in terms of gaps, which are defined as a MAC’s incomplete implementation of FISMA or CMS core security requirements. PwC categorized gaps into three

GAO’s Findings: •

CMS should continue its oversight of MAC Information Security Programs and ensure that the MACs remediate all high- and medium-risk gaps in a timely manner.

categories: high, medium, and low risk. CMS does not require corrective action plans for low-risk gaps involving a MAC’s internal controls and its operations. The MACs are responsible for developing a corrective action plan for each high- and medium-risk gap, and CMS is responsible for tracking all corrective action plans and ensuring that such gaps are remediated in a timely manner. CMS performs at least one oversight visit to each MAC during the year to address all gaps identified by PwC during the prior year’s reviews. OIG’s Findings The OIG evaluated the FY 2015 results of the independent evaluations of the MACs’ information security programs, however, its review did not include an evaluation of internal controls. The OIG found that PwC’s evaluations of the contractor information security programs were adequate in scope and sufficiency. As shown in Table 1 below PwC identified a 149 gaps at the 9 MACs and the number of gaps ranged from 14 to 25 and averaged 17. The total number of gaps reported for the 9 MACs that PwC evaluated increased by 16 percent in FY 2015 (from 129 in FY 2014 to 149 in FY 2015) of which 22 were high-risk gaps, 46 were medium-risk gaps, and 81 were lowrisk gaps. Of the 68 high- and mediumrisk gaps, 6 (9 percent) were repeat gaps from FY 2014. Four of the six repeat gaps (67 percent) were identified as high risk in both FYs. Additional controls were also tested and the number of MACs with 11 to 15 gaps AMRPA Magazine March 2017

Table 1: Range of Medicare Administrative Contractor Gaps, FYs 2013 and 2014 Number of Contractors With FY

Number of Contractors

Total Gaps

0 Gaps

1–5 Gap(s)

6–10 Gaps

11–15 Gaps

16+ Gaps

2014

129

2015

149

decreased by 3, and the number of MACs with 16 or more gaps increased by 3. One MAC had fewer gaps in FY 2015, seven MACs had more gaps, and one had the same number of gaps. The MAC information security program evaluations covered several subcategories within each FISMA control area. Individual gaps were assigned an overall risk level on a subjective basis by PwC after considering the impact on CMS and likelihood of occurrence. The three FISMA control areas containing the most gaps were: 1. Policies and Procedures To Reduce Risk Ineffective policies and procedures to reduce risk could jeopardize an organization’s mission, information, and IT assets. Without adequate configuration standards and the latest security patches, systems may be susceptible to exploitation that could lead to unauthorized disclosure of data, data modification, or the

unavailability of data. 2. Periodic Testing of Information Security Controls Without a comprehensive program for periodically testing and monitoring information security controls, management has no assurance that appropriate safeguards are in place to mitigate identified risks. 3. System Security Plans If information security program requirements are not implemented and enforced, management has no assurance that established system security controls will be effective in protecting valuable assets, such as information, hardware, software, systems, and related technology assets. In addition, if information security program requirements are not implemented and enforced, management has no assurance that established system security controls will be effective in protecting valuable assets that support the organization’s critical missions.

Conclusion The OIG concluded that the scope of the work and sufficiency of documentation for all reported gaps were sufficient for the nine MACs reviewed by PwC. While the total number of gaps, which includes low-risk gaps, identified at the MACs has increased from FY 2014; however, it should be noted that additional controls were tested this year. Deficiencies remain in the FISMA control areas tested, including many that were high risk and were repeated from the previous year. For that reason, CMS should continue its oversight visits and ensure that the MACs remediate all high- and medium-risk gaps in a timely manner. CMS had no comments on the draft report. The complete OIG report Review of Medicare Contractor Information Security Program Evaluations for Fiscal Year 2015, January 2017 is available at https://oig.hhs. gov/oas/reports/region18/181630300.pdf

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CMS FINALIZES CHANGES TO THE MEDICARE ADMINISTRATIVE APPEALS PROCESS

n January 17, 2017, the Centers for Medicare and Medicaid Services (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 also permits some decisions by the Medicare Appeals Council to be considered precedent-setting, adds attorney adjudicators to supplement the overburdened ALJs, and alters certain ALJ procedures, among other revisions. The regulation was set to take effect on March 20, 2017 but the 60-day regulatory moratorium imposed by the Trump Administration likely applies to this Final Rule. AMRPA submitted comments to the proposed rule on August 29, 2016. The following highlights some of AMRPA’s comments, and how CMS responded to them in its Final Rule.

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.

Change to the 90-Day ALJ Decision Deadline The Final Rule removes the mandatory nature of the 90-day deadline for ALJ decisions, despite 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’ 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

Precedential Medicare Appeals Council Decisions In its comments to the proposed rule, AMRPA generally supported giving precedential weight to some Medicare Appeals Council (Council) decisions. This means that certain types of cases would not have to be reheard over and over again. A decision designated as precedential would be binding on all other appeals that concern similar issues. This proposal was solidified in the final rule but confined to only select Council decisions would create precedent if designated by the Chair of the Departmental Appeals Board (DAB). Precedential Council decisions will be published in the Federal Register and available to the public.

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. This change is particularly troubling considering the huge backlog of ALJ cases pending before the Office of Medicare Hearings and Appeals (OMHA). The Department of Health and Human Services (HHS) was recently directed by the District of Columbia District Court to eliminate the ALJ backlog by the year 2020. The government is appealing this case, AHA v. Burwell, to the DC Circuit Court, which will be briefed and hear later this year. Therefore, this regulation could be viewed by the court as an end-run around the judiciary. It remains to be seen how the Circuit Court will respond when it hears the AHA v. Burwell appeal.

AMRPA had expressed reservations regarding the lack of clear criteria governing the selection of decisions that will be designated as precedential. In

response, CMS added language to the Final Rule at § 401.109(a) stating that the DAB Chair may take into consideration decisions that address, resolve, or clarify recurring legal issues, rule or policies, or that may have broad application or impact, or involve issues of public interest in determining which decisions should be designated as precedential. This means that cases that are decided based on issues of fact will not become precedential. Therefore, just because one fact pattern in an ALJ case is similar to another fact pattern in another case does not mean that the appellant will be able to win their case based on the holding in the first case.

ABOUT THE AUTHORS

Peter W. Thomas Counsel, AMRPA Consumer and Clinical Affairs Committee and Denials Management Task Force

Steve Postal Director, Health Policy, Powers Law Firm AMRPA Magazine March 2017

AMRPA also expressed concerns about the lack of a timeframe for labeling a decision as precedential. In the Final Rule, CMS declined to specify a timeframe, arguing that resource and procedural constraints may limit how quickly the designation process may be completed. Establishing precedent is likely to benefit some appellants (those exposed to favorable precedent) and harm others (those subjected to unfavorable precedent). Given the Council’s past history of being a less-than-hospitable venue for appellants, the ability of the Chair of the DAB to “pick and choose” presents a risk to providers and patients, but could also work in their favor, depending on how the Chair exercises his new authority. Attorney Adjudicators Another major proposal finalized in the Rule is the creation of “attorney adjudicators,” who would decide certain cases. Attorney adjudicators will handle: •

Decisions that can be issued without an ALJ conducting a hearing;

•

Dismissals when an appellant withdraws his or her request for an ALJ hearing;

•

Remands to the Qualified Independent Contractor (QIC), Independent Review Entity (IRE), or other contractor, or the Part D plan sponsor; and,

•

Reviews of QIC and IRE dismissals.

Generally, attorney adjudicators will be authorized to act where a decision can be issued without an ALJ conducting a hearing. In its comment letter, AMRPA was largely in support of the new role of attorney adjudicators, in that they can assist in reducing the OMHA backlog by tackling procedural issues that the ALJs would otherwise have to handle. However, AMRPA encouraged CMS to include more details about the required qualifications for personnel serving as attorney adjudicators. The Final Rule addresses AMRPA’s request that OMHA should establish clear and specific guidelines for both the qualifications and the hiring of attorney adjudicators, but stated that OMHA believes that its proposed and finalized definition of “attorney adjudicator” sufficiently identifies: the requirement that attorney

adjudicators be licensed attorneys, the knowledge that attorney adjudicators will possess, and the scope of their authority.

invalid election or failure to properly notify other parties of participation or party status.

AMRPA also advocated for CMS to permit an appellant to decline the transfer of an appeal to an attorney adjudicator. In the Final Rule, CMS points out that appellants and other parties may withdraw a waiver of the right to appear at the hearing at any time before a notice of decision has been issued, and can request that the adjudicator withdraw from the appeal if the appellant has concerns about the adjudicator having a conflict or bias.

AMRPA recommended that CMS clarify how an ALJ should proceed if a contractor fails to make an appearance at the hearing after notifying the ALJ and appellant(s) of its intention to be a participant or party. Specifically, if the contractor or CMS does not appear at a hearing after filing a notice of participation or party status, AMRPA argued that no further participation or party status should be permitted for that entity. In response to that request, CMS states that if CMS or a contractor has elected to be a participant or a party at the hearing and fails to appear at the hearing—and notice of the hearing time and place have been duly provided—then the ALJ may proceed without that entity. CMS states that it believes the regulations did not need to be further clarified in this regard.

Finally, AMRPA proposed that OMHA should obtain consent from the appellant(s) before an appeal is transferred to or addressed by an attorney adjudicator. CMS responds that allowing the parties to choose whether an ALJ or attorney adjudicator will issue the decision when the right to appear at the hearing is waived, or to object if the appeal is assigned to an attorney adjudicator would negate some of the anticipated efficiencies of the Final Rule and provide the parties with “undue influence” over the adjudicator assigned to the appeal. Lastly, the Final Rule states that since CMS believes that there is no qualitative distinction in decisions issued by ALJs and attorney adjudicators, by waiving the right to appear at a hearing, parties are aware that the decision may be issued by either an ALJ or an attorney adjudicator, if no hearing is required to decide the appeal. Participation in Hearings by CMS and its Contractors The Final Rule finalizes extensive changes to the process for CMS and its contractors to participate in hearings. The changes include: •

Allowing only one entity to enter the appeal as a party;

•

Allowing only one entity to enter the appeal as a participant;

•

Allowing two separate opportunities for election of party or participant status;

•

Clarifying the role of a participant versus a party; and,

•

Clarifying the consequences of an

AMRPA supported the proposed rule’s limitation of the number of contractors who may elect to enter an appeal as participants or parties. CMS finalized these provisions in the Final Rule. However, AMRPA asked CMS to go a step further and prohibit the participation of another contractor when CMS or one of its contractors has entered the appeal as a party. AMRPA argued that the rights of a party encompass all the rights of a participant, and it is unclear what additional value would be gained from allowing a contractor to enter as a participant in such instances. CMS states that if CMS or a contractor has been made a party to a hearing, no entity that elected to be a participant in the proceedings may participate in the oral hearing, but such entity may file a position paper and/or written testimony to clarify factual or policy issues in the case. CMS explains in the Final Rule that administrative efficiency is promoted by limiting participation at the oral hearing, but not by limiting position papers and written testimony. These finalized changes, while not going as far as AMRPA had advocated in its comments, constitute additional barriers for contractor participation and should be welcomed by providers and beneficiaries. These changes make scheduling of

hearings easier, limit the number of adversaries faced in such hearings, and provide clear guidance for ALJs to apply consequences to the contractors for failure to follow the rules. Statistical Sampling and Extrapolation For appeals involving challenges to statistical sampling or extrapolation, the Final Rule states (as in the proposed rule) that the request for hearing must include required information for each sampled claim appealed and assert the reasons the appellant disagrees with the sampling methodology or extrapolation. The Final Rule grants appellants additional time to file an appeal of an extrapolated determination, with the deadline for appeal at 60 days after the date the party received the last reconsideration for the sampled claims. This provision of the Final Rule allows for more streamlined and strategic appeals, and can assist providers in preparing defenses to highdollar statistical extrapolation claims. AMPRA supported these provisions as proposed, and supports them as written in the final rule. Request for Hearing The Final Rule includes several changes to the requirements for the request for hearing. The Final Rule did not finalize the proposed rule’s provision requiring a statement in the request for hearing about whether the appellant is aware that either the appellant or the claim is the subject of an investigation or other proceeding by the Office of Inspector General (OIG) or other law enforcement agency. AMRPA opposed this provision in the proposed rule, arguing that reporting the existence of an investigation on the request for hearing would be highly prejudicial to the appellant, and that this information would be irrelevant to the ALJ’s determination of whether the items or services met coverage and payment rules. CMS ultimately did not adopt this provision in the final rule, a decision AMRPA strongly supports. The Administrative Record In the Final Rule, CMS states that appellants have access to the ALJ hearing record (including the audio recording of the hearing). AMRPA requested that CMS create procedures for appellants to request the hearing record after the

ALJ issues a decision but before an appeal is filed with the Medicare Appeals Council. CMS states that after a case is adjudicated, OMHA releases custody of the administrative record and forwards it to a CMS contractor, at which time OHMA no longer has possession of the record and, therefore, is not able to provide a copy of the hearing transcript. If a request for review is filed with the Council, there are procedures for requesting and receiving a copy of the record from the Council. If the party wishes to request a copy of the record after a decision or dismissal is issued by an ALJ or attorney adjudicator and prior to filing a request for review with the Council, however, the requesting party may contact CMS to obtain a copy of the record. Access to the hearing record can be critical when deciding whether to appeal to the Council or in framing the issues to be raised in such an appeal. While the hearing record no longer resides at OMHA, which would be ideal for providers, the Final Rule does provide a mechanism for appellants to access the record after the ALJ decision but before any Council appeal. Consolidated Proceedings The Final Rule contains several clarifications and revisions to the method for conducting consolidated hearings. AMRPA recommended that CMS go further and revise the regulations to permit consolidation of all appellants’ pending appeals that concern the same issue(s), upon the appellant’s request, regardless of whether they are currently assigned to the same ALJ. AMRPA argued that this would allow ALJs to decide each individual appeal quickly when they involve common issues while preserving the resources of OMHA and appellants. In addition, allowing a single ALJ to handle consolidated appeals would improve decisional consistency on the common issues of fact and law. In response, CMS stated that the final rule strikes the appropriate balance between promoting administrative efficiency and maintaining rotational assignments of cases to ALJs. It also allows OMHA to balance workload among its ALJs and attorney adjudicators. CMS argues that consolidation of proceedings is

only available with respect to appeals pending before the same ALJ. CMS states that allowing parties to request consolidation of proceedings that have been assigned to multiple adjudicators would be contrary to the concept of rotational assignment, would disrupt the workflow of adjudicators, cause delays for other appellants, and add inefficiency to the process by requiring additional administrative resources to process such requests and reassign the appeals. However, CMS notes that an appellant may request a combination of multiple appealed reconsiderations on its request for hearing and, if the criteria for combination are met, OMHA can accommodate such a request to the extent feasible by combining the appealed reconsiderations under a single ALJ appeal number. If OMHA is unable to accommodate the request but multiple appeals are assigned to a single adjudicator, the adjudicator can then consider consolidation of the appeals. Conclusion The Final Rule presents changes to the ALJ appeal process that could alternately benefit or disadvantage appellants. On balance, there are many aspects of the final rule that accommodate AMRPA’s concerns with the proposed rule. The most egregious to both providers and patients is likely the provision that removes the mandatory nature of the ALJ decision deadline. Reforms to statistical sampling and extrapolation, and changes to the request for hearing are mostly positive, while the Final Rule also makes moderate improvements in the proposed changes to participation in hearings by CMS and its contractors, the administrative record, and consolidated hearings. Because of the change in administrations and the 60-day regulatory moratorium, it is not definite that this final rule will eventually go into effect as written. After the Trump Administration reviews the regulation, it may release it as is with a new effective date, or it may issue new provisions and change others prior to publication.

AMRPA Magazine March 2017

STUDY FINDINGS MAY LEAD TO BETTER DECISION-MAKING IN PREDICTING RECOVERY TIME FOR SPORTS CONCUSSIONS

ationwide, at least 1.7 million traumatic brain injuries (TBIs), or concussions, occur each year in the United States according to the Centers for Disease Control and Prevention (CDC). Traumatic brain injuries can result from a blow or jolt to the head or an object going through the skull. Athletes who return to play before they’re fully recovered are at high risk for long-term symptoms such as headaches, dizziness, and cognitive deficits if they have future concussions. To determine if higher levels of tau protein relate to longer recovery times, a team led by Dr. Jessica Gill of NIH’s National Institute of Nursing Research (NINR) examined changes in tau levels after sports-related concussions. The tau protein is a marker of brain cell injury following severe traumatic brain injuries and has been linked to development of Alzheimer’s and Parkinson’s disease. The researchers first measured pre-season levels of tau and cognitive performance in a group of 632 soccer, football, basketball, hockey, and lacrosse athletes from the University of Rochester. The athletes were then followed during the season for any diagnosis of a concussion. During the study, forty-three of the players developed concussions. Following the diagnosis,

blood samples were taken from the concussed athletes at 6 hours, 24 hours, 72 hours, and 7 days post-concussion. For comparison, blood samples were also taken from a control group of 37 teammate athletes without concussions. A group of 21 healthy non-athletes who were similar in age and sex served as another control group. Concussed athletes who needed more than 10 days of post-concussion recovery time before returning to play had higher average tau levels at 6, 24, and 72 hours post-concussion than athletes who were able to return to play in 10 days or less. This was observed in both male and female athletes, as well as across the various sports studied. The study findings suggest that changes in tau measured within 6 hours of a sportsrelated concussion may provide a tool to inform better decision-making about predicted recovery times and safe return to play. “Keeping athletes safer from long-term consequences of concussions is important to players, coaches, parents, and fans,” says NINR Director Dr. Patricia A. Grady. “In the future, this research may help to develop a reliable and fast clinical lab test that can identify athletes at higher risk for chronic post-concussion symptoms.” For

GAO’s Findings: •

Study may lead to ways for determining how long concussed athletes should wait before they can safely return to play.

unknown reasons, both athlete groups had significantly higher tau levels than the nonathlete controls. The scientists plan to test additional biomarkers and examine other post-concussion outcomes in the future. The study was supported by NINR and NIH’s Eunice Kennedy Shriver National Institute of Child Health and Human Development (NICHD) and the results were published online in Neurology on January 6, 2017. References: Acute plasma tau relates to prolonged return to play after concussion. Gill J, Merchant-Borna K, Jeromin A, Livingston W, Bazarian J. Neurology. 2017 Jan 6. Source: Predicting Recovery Time for Sports Concussions, January 2017, https:// www.nih.gov/news-events/nih-researchmatters/predicting-recovery-time-sportsconcussions

CMS Releases 2014 Skilled Nursing Facility Utilization and Payment Data CMS has posted the second annual release of the Skilled Nursing Facility (SNF) Public Use File (Skilled Nursing Facility PUF) with data for 2014. The SNF PUF presents information on services provided to Medicare beneficiaries by skilled nursing facilities (SNFs). It contains information on utilization, payment (Medicare payment and Medicare standardized payment), submitted charges and beneficiary demographic and chronic condition indicators organized by CMS Certification Number (6-digit provider identification number), Resource Utilization Group (RUG) and state of service. The new 2014 PUF includes information for 15,026 skilled nursing facilities (SNFs), nearly 2.5 million stays and over $27 billion in Medicare payments for 2014. The data also includes demographic and chronic condition information. The updated 2014 data and supplemental information is available at: https://www.cms.gov/Research-Statistics-Data-andSystems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/SNF2014.html 13

ASPE ISSUES FIRST REPORT ON SPECIAL RISK FACTORS AND IMPACT ON VALUE-BASED PURCHASING PROGRAMS By Carolyn C. Zollar, MA, JD, Executive Vice President of Government Relations and Policy Development, AMRPA

n December the Assistant Secretary for Planning and Evaluation (ASPE) for the Department of Health and Human Services (HHS) issued the first of two reports required under the Improving Medicare PostAcute Care Transformation Act (IMPACT Act) regarding socioeconomic status risk factors, characterized in the report as social risk factors. They have a significant impact on health and life expectancy and include, among others, income, education, race and ethnicity, employment, community resources and social support. However, in this report the factors examined were dual eligibility as a marker for low income, residence in a low income area, Black race, Hispanic ethnicity and residence in a rural area. Disability was also examined, and functional status was alluded to as a potential factor to be considered in the second mandated report required under the IMPACT Act. At the same time that policymakers, researchers and others acknowledge the impact of social risk factors on health and mortality, the health care system is increasingly moving towards higher levels of provider accountability for the quality, outcomes and costs of care. Value-based or alternative payment models (APMs), which link payment to the quality and efficiency of health care delivered, are present now in hospitals, outpatient settings and postacute facilities. However, the dynamics of these programs and impact of these risk factors can be positive and negative for patients. If patients with social risk factors have worse health outcomes because of low-quality care providers, value-based purchasing 14

could drive improvements in care and reduce health disparities. However, if such beneficiaries have worse health outcomes because of elements beyond the quality of care provided, such as the social risk factors themselves, value-based payment models could do just the opposite: if providers have limited ability to influence health outcomes for beneficiaries with social risk factors, they may become reluctant to admit such beneficiaries out of fear of incurring penalties due to factors over which they have limited control.

based purchasing program (HVBP), hospital acquired condition reduction program (HACRP); Medicare Advantage star rating program; Medicare shared saving program (MSSP); physician value based payment modifier program (PVBMP); end stage renal disease quality incentive program (ESRD QIP); skilled nursing facility value based purchasing program (SNF VBP) and the home health value based purchasing program (HHVBP).

In many ways, according to the study, beneficiaries with social risk factors may benefit the most from value-based purchasing programs and other delivery system reform efforts, since improved care coordination and provider cooperation will be of the highest utility to the most complex beneficiaries with the most care needs. Therefore, in order to properly align payments and ensure value-based purchasing programs achieve their intended goals, the relationships between social risk factors and performance need to be understood better.

1. Beneficiaries with social risk factors had worse outcomes on many quality measures, regardless of the providers they saw, and dual enrollment status was the most powerful predictor of poor outcomes.

AMRPA has been very concerned that the various quality reporting programs and measures should be adequately risk adjusted. It has commented on the need for such adjustment on readmission measures as well as others. Patientsâ&#x20AC;&#x2122; status with respect to presence to family, caregivers, community supports, functional status and other factors are critical in rehabilitation in determining admission at times and discharge locations. The programs studied in the report included the hospital readmission reduction program (HRRP); hospital value

The findings from the study were:

Beneficiaries with social risk factors had poorer outcomes on many quality measures, including process measures (e.g., cancer screening), clinical outcome measures (e.g., diabetes control, readmissions), safety (e.g., infection rates) and patient experience measures (e.g., communication from doctors and nurses), as well as higher resource use (e.g., higher spending per hospital admission episode). These results are true even when comparing beneficiaries at the same hospital, health plan, ACO, physician group, or facility. Dual enrollment was typically the most powerful predictor of poor performance among the factors examined. For the most part, these findings persisted after risk adjustment, across care settings, measure types and programs, and were moderate in size. 2. Providers that disproportionately served beneficiaries with social risk factors AMRPA Magazine March 2017

tended to have worse performance on quality measures, even after accounting for their beneficiary mix. Under all five value-based purchasing programs in which penalties are currently assessed, these providers experienced somewhat higher penalties than did providers serving fewer beneficiaries with social risk factors. All providers that disproportionately cared for beneficiaries with social risk factors performed worse than their peers on quality measures. Beneficiary mix contributed to the difference, but some of the difference continued even after adjusting for beneficiary characteristics. Hence, safety-net providers were more likely to experience financial penalties across all five Medicare value-based purchasing programs in which penalties are assessed. They were also less likely to receive Medicare Advantage bonuses. The single exception was that ACOs with a high proportion of dually-enrolled beneficiaries were more likely to share in savings under the Medicare Shared Savings Program (MSSP), despite slightly worse quality scores. However, in every setting there were some providers that served a high proportion of beneficiaries with social risk factors who achieved high levels of performance. The researchers concluded that high performance is feasible, with the right strategies and supports. Interpretation of Findings The study focused on two questions. The first was: “Do beneficiaries with social risk factors have worse outcomes due to their social risk profile, or because of the providers they see?” The report said both – dual enrollment status is independently associated with worse outcomes, and dually enrolled beneficiaries are more likely to see lower-quality providers. The second question was: “Do providers that serve beneficiaries with social risk factors perform worse due to the high proportion of beneficiaries with social risk factors, or do they provide lower-quality care overall?” The answer, again, was both: providers serving high proportions of beneficiaries with social risk factors tended to perform worse in part due to the patient population, and in part due to poor performance overall.

However, these analyses did not answer why such patterns exist. Beneficiaries with social risk factors may have poorer outcomes due to multiple factors, including higher levels of medical risk, worse living environments, greater challenges in adherence and lifestyle, and/ or bias or discrimination. Some of these factors are beyond providers’ control, such as higher levels of medical risk and worse living environments. Some factors may be partially influenced by clinicians, such as adherence and lifestyle choices. And some factors are entirely under clinicians’ control, such as bias and discrimination. Providers may have poorer performance due to a similarly long list of factors, including fewer resources, more challenging clinical workloads, lower levels of community support, or worse quality of care. Some of these factors are under providers’ control, and some are not. Unfortunately, many of these factors, for both beneficiaries and providers, are not easily measured with current data. Potential Solutions The report explored potential solutions as well as how to account for various risk factors. Quality measures are used in these programs for: reporting to providers and the public and in determining payment adjustments such as bonuses and penalties. Thus, potential solutions can focus on adjusting the measures for reporting, adjusting the measures in determining payments, or adjusting the payment methodologies without adjusting the measures themselves. 1. Adjusting quality and resource use measures Quality and resource use measures can be and are used for multiple purposes. Some measures are used purely for quality improvement. Many of these measures are process measures that are based upon steps within clinical practice guidelines. Generally, such measures are not risk adjusted, even for clinical co-morbidities, as providers are most interested in using these measures internally and not for comparative performance purposes. Measures used for reporting and accountability are typically used to profile providers against one another, usually as a requirement of the authorizing statute. The role of risk

adjustment is to “level the playing field,” and to fairly compare providers to one another on patient outcomes, such that the main differences in performance are related to the quality of care provided, rather than to patient factors over which providers have no control, such as clinical conditions. One group have argued that public reporting and accountability measures should be adjusted for social risk factors. They argue that adjusting measures for social risk factors recognizes the greater challenges that may be faced in achieving high performance for beneficiaries with social risk factors, and may reduce the likelihood that concerns about performance could lead to worse access to care for these groups by penalizing providers who serve them. They also argue that failing to adjust for differences in the populations served by different providers may lead to inaccurate representations of the quality of care a provider is furnishing to patients. Supporters of adjusting measures for social risk factors further note that there may be situations in which measure performance is so closely tied to social risk and its consequences, in ways that are truly beyond providers’ control, that achieving policy goals necessitates adjustment. Currently, some care utilization measures, as well as the selfreported health status measures used in the Medicare Advantage program and the patient experience measures used in many current Medicare payment programs, are adjusted for social risk. On the other hand however, some argue that adjustment for social risk is not appropriate. First, they argue that adjusting measures for social factors risks masking disparities in the quality of care provided, thereby reducing the long-term ability to identify and reduce them. Second, at least to the degree that differences in quality are related to poor performance, bias, or discrimination, they argue that directly adjusting measures could excuse the delivery of worse care to beneficiaries with social risk factors. Third, opponents of adjusting for social risk suggest that doing so may reduce incentives for 15

providers to participate in alternative care delivery models, and therefore providers may miss opportunities to provide better-coordinated and tailored care to vulnerable beneficiaries. Finally, they argue that adjusting the measures may have a negative impact on transparency for consumers and others. Opponents also argue that broad adjustment is inappropriate because there are many quality measures for which there is no plausible role for adjustment – pure process measures such as giving aspirin for a heart attack, for example, should generally not be adjusted for social risk since they are entirely under providers’ control, and should be done regardless of a beneficiary’s social risk profile. Under this theory, there is no reason that social risk should be directly associated with performance on process measures, and poor performance in these scenarios is more likely reflective of poor quality than of need or complexity. Currently, the majority of process and clinical outcome measures used in Medicare payment programs are not adjusted for social risk. 2. Adjusting payments A separate decision is possible with regard to adjusting payment (penalties and bonuses) for social risk. One option is to base the penalty/bonus calculation on adjusted measures; this has some of the pros and cons above, though does not negatively impact transparency since the adjustment is applied after reporting. However, another option for accounting for social risk in these programs lies in not adjusting the measures themselves, but instead in altering the mechanism by which performance is translated to payment. Such alterations could be used to give additional “credit” to providers that serve a high proportion of beneficiaries with social risk factors. If these payment adjustments were linked to improvement or achievement in performance for beneficiaries with social risk factors, they could potentially provide additional incentives to improve care and outcomes for these groups, and provide financial support while preserving accountability.

Such an approach preserves the transparency of the measures, but still recognizes the challenges inherent in achieving high quality and good outcomes for beneficiaries with social risk factors. It might also offset concerns that, in the absence of some type of accounting for social risk, value-based purchasing models could result in providers becoming reluctant to care for beneficiaries with social risk factors out of fear of incurring penalties due to elements they have limited ability to influence. 3. Addressing the underlying issues Finally, some point out that neither adjusting the measures, nor altering value-based payments, addresses the fundamental problems underlying the pervasive differences in performance across measures and programs. Social determinants of health are powerful, and to make things better for beneficiaries with social risk factors and the providers who serve them, these factors need to be explicitly measured and their impact tracked, perhaps via the use of new measures that specifically capture providers’ performance for beneficiaries with social risk factors. Such new measures could include calculating performance on current measures for subgroups of beneficiaries with social risk factors, or specific measures of health equity comparing performance between beneficiaries with social risk factors and other beneficiaries. Once measured and recognized, these issues could be addressed with financial and technical assistance. Such assistance should be tailored to recognize the unique characteristics of beneficiaries with social risk factors and the providers that disproportionately serve them, and directed toward the goal of achieving highest quality of care for all patients. As a result of its analysis, ASPE proposed a three part strategy of: 1. Measure and report quality for beneficiaries with social risk factors; 2. Set high, fair quality standards for all beneficiaries; and 3. Reward and support better outcomes for beneficiaries with social risk factors.

Therefore, value-based programs should: •

•

purchasing

provide specific payment adjustments to reward achievement and/or improvement for beneficiaries with social risk factors, and where feasible, provide targeted support for providers who disproportionately serve them.

The report concludes stating that social factors are powerful determinants of health. In Medicare, beneficiaries with social risk factors have worse outcomes on many quality measures, including measures of processes of care, intermediate outcomes, outcomes, safety, and patient/ consumer experience, as well as higher costs and resource use. Beneficiaries with social risk factors may have poorer outcomes due to higher levels of medical risk, worse living environments, greater challenges in adherence and lifestyle, and/ or bias or discrimination. Providers serving these beneficiaries may have poorer performance due to fewer resources, more challenging clinical workloads, lower levels of community support, or worse quality. The findings outlined in the report are the beginning of work needed to create fair and accurate quality measurement in the context of Medicare’s expanding value-based purchasing programs. The IMPACT Act lays out specific additional requirements for the second study, including the examination of specific social risk factors not currently available in Medicare data such as health literacy, limited English proficiency, and Medicare beneficiary activation (the degree to which beneficiaries have the knowledge, skill, and confidence to manage their health and health care). Based on the findings in this report, the conclusion states that future work may also include examining the impact of measuring and accounting for functional status or frailty on the relationship between social risk factors and performance, and identifying care innovations associated with good health and outcomes for beneficiaries with other risk factors.

AMRPA Magazine March 2017

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NATIONAL QUALITY FORUM ISSUES RECOMMENDATIONS TO CMS ON 2017 IRF QRP PERFORMANCE MEASURES By Mimi Zhang, Policy and Research Associate

n February, the National Quality Forum’s (NQF) Measures Application Partnership (MAP) issued its final recommendations to the Department of Health and Human Services (HHS) regarding performance measures under consideration for sixteen federal healthcare programs in 2017. These measures are considered for use in Medicare’s payfor-performance and public reporting quality programs, including the Inpatient Rehabilitation Facility Quality Reporting Program (IRF QRP). This article discusses the MAP’s role within the federal rulemaking process and the quality measures that the Centers for Medicare and Medicaid Services (CMS) is considering, at this stage, for inpatient rehabilitation hospitals and units (IRH/ Us). AMRPA has provided feedback to CMS and NQF throughout the measure development process and is pleased to see NQF’s final recommendations align with ours. Background In 2009, HHS contracted the NQF to develop a portfolio of quality and efficiency measures on which healthcare providers to report in an effort to improve the quality of care patients receive. NQF is a membership organization that endorses measures but does not develop them. Its stated purpose is to be a neutral convener of public and private experts who establish priorities and endorse measures “to achieve healthcare that is safe, effective, patient-centered, timely, efficient, and equitable.” The work undertaken by NQF for HHS, as required by the Medicare Improvements for Patients and Providers Act (MIPPA) of 2008, includes development

of a national strategy and priorities for healthcare performance measurement, the implementation of a consensus process for endorsement of quality measures, and identification of gap areas for which measures need to be developed. As part of its work, NQF established the Measures Application Partnership (MAP) in 2011 as a way to convene panels of experts to evaluate measures and identify measure gaps in priority areas including post-acute and long-term care. Through the MAP’s Post-Acute Care/Long-Term Care (PAC/LTC) Workgroup, NQF provides input to CMS on measures it is considering adopting in future rulemaking for PAC providers. The MAP’s portfolio of work has been expanded to include the review of measures under consideration for use in complying with the requirements of the Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014 (P.L. 113–185). Typically, the MAP begins its work each fall. The various workgroups meet and review the measures under consideration (MUC) at CMS. By December, NQF staff takes any public comments it receives in addition to the recommendations of the workgroups and develops a pre-rulemaking report. This pre-rulemaking report includes measures which the MAP has evaluated for future use in the Medicare performance improvement programs and may also identify gaps for which measures need to be developed. The MAP’s final recommendations on the pre-rulemaking report were to be submitted to CMS by February 1. The public has several opportunities to influence the MAP’s recommendations,

Highlights •

•

NQF has reviewed two new measures and one revised measure under consideration for 2017 use in the IRF QRP: a transfer of patient information measure at admission, a transfer of information measure at discharge, and revisions to the pressure ulcer measure. NQF recommends CMS refine and resubmit the Transfer of Information measures prior to rulemaking, and conditionally supports the pressure ulcer measure for rulemaking.

including when the draft pre-rulemaking MUC report is issued in December and again when the MAP issues its draft recommendations in January. Given this timeline, the comment opportunity is short and requires quick action to ensure comments are received in a timely fashion. CMS is then required to consider the MAP recommendations regarding whether to adopt or exclude these measures through the rulemaking process. 2017 Pre-Rulemaking Report The NQF released its final recommendations on CMS’s 2017 pre-rulemaking MUCs on February 1, 2017. Much of the MAP’s PAC portfolio in the recent years has been driven by the statutory requirements and timelines laid out by the IMPACT Act and this year was no different. CMS submitted to NQF three IRF QRP measures for consideration, and they fall under domains specified in the IMPACT Act. As readers may know, the Act requires that CMS 19

develop cross-setting measures for PAC which satisfy certain quality domains. The transfer of information measures at admission and discharge fall under the domain of “Transfer of health information and patient care preferences when an individual transitions,” and the pressure ulcer measure satisfies the Act’s “Skin integrity” domain. Accordingly, these measures are also under consideration for the Long-Term Care Hospital (LTCH) QRP, Home Health (HH) QRP, and Skilled Nursing Facility (SNF) QRP in 2017. To see all the measure specifications, visit the NQF website at http://www.qualityforum. org/MAP/. In its report, the MAP offered the following final recommendations and accompanying rationale on the IRF QRP measures. MAP IRF QRP Measure ID

MAP Final Recommendation

MUC16-143: Application of Percent of Residents or PaConditional tients with Pressure support for Ulcers That Are rulemaking New or Worsened (Short-Stay) (NQF #678) MAP Rationale While the MAP acknowledged that the pressure ulcer measure is endorsed in its current form (NQF#678) and currently implemented in the SNF QRP, LTCH QRP, and IRF QRP, some Workgroup members raised concerns about the impact of the material revisions to the measure, including the addition of unstageable pressure ulcers. Thus, as part of the measure implementation, the MAP recommends CMS provide guidance on the correct collection and calculation of measure results as well as include guidance on PAC public reporting sites explaining the impact of the specifications MAP IRF QRP Measure ID

MAP Final Recommendation

MUC16-319: Transfer of Information at PAC Admission, Refine and Resubmit Prior to Start or ResumpRulemaking tion of Care from other providers/ settings

change on the measure result. The MAP also recommended an investigation of the unexpected results, which were reported in public comments, in the current phase of data collection. MAP Rationale The MAP recommended CMS refine the Transfer of Information at Admission measure and resubmit it for consideration in a future iteration of the pre-rulemaking process. The IMPACT Act requires that IRH/Us, LTCHs, and SNFs begin reporting under the Transfer of Information domain no later than October 1, 2018. One of the Workgroup’s significant concerns with the measure is its reliance on the discharging facility to provide information. Hence, if the discharging facility fails to transfer information, the admitting facility may be held responsible through no fault of its own. The Workgroup members also raised other concerns including incomplete measure development, existing regulations which already mandate the transfer of information between settings, and only one of eleven patient information elements needing to be transferred to meet the measure. MAP IRF QRP Measure ID

MAP Final Recommendation

MUC16-325: Transfer of Information Refine and Reat Post-Acute Care submit Prior to Discharge or End Rulemaking of Care to Other Providers/Settings MAP Rationale The MAP recommended that CMS also refine the Transfer of Information at Discharge measure and resubmit it for the Workgroup’s consideration in a future iteration of the pre-rulemaking process. Concerns identified with the measure include incomplete development, existing regulations which already mandate the transfer of information between settings, and only one of eleven patient information elements needing to be transferred to meet the measure.

with the support of measure developer contractors, convenes a technical expert panel (TEP) to review the preliminary technical specifications the agency has developed. AMRPA is proud to have representation on the TEPs examining the pressure ulcer measure and the transfer of information measures last year. AMRPA subsequently submitted to CMS our recommendations on the measures’ draft specifications when CMS solicited public feedback in November and December 2016. AMRPA also offered input directly to NQF in December 2016 and January 2017 when the PAC/LTC Workgroup convened to review these measures as part of their 2017 portfolio. We are pleased to see the MAP’s final recommendations parallel closely with ours and those of other inpatient rehabilitation providers and advocates. AMRPA’s comments letters can be viewed at www.amrpa.org. Conclusion The NQF plays a significant role in reviewing and, at times, endorsing measures CMS selects for its various quality improvement programs. It will continue to provide recommendations to the agency on the measures for inclusion in future rulemakings, so it is important to monitor NQF’s activities and recommendations. AMRPA anticipates the above measures will be subject to at least one more round of public comment through the Inpatient Rehabilitation Facility Prospective Payment System (IRF PPS) proposed rule, which is typically issued each April. Through AMRPA’s participation in the measure development process, we seek to ensure that quality measures being developed for IRH/Us minimize provider burden, do not unintentionally create barriers to access, and adhere to the true north of improving patient care. If you would like to find out more about the Measure Applications Partnership, please visit the NQF website at http:// www.qualityforum.org/map/.

AMRPA’s Input Along the Way AMRPA has been monitoring the progress of these measures over the course of their development life-cycle and has provided feedback to multiple entities along the way. In a measure’s nascence, CMS, usually AMRPA Magazine March 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!

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 March 2017

LATEST RESEARCH FINDINGS AVOIDING POST-OPERATIVE SURGICAL PRECAUTIONS MAY LEAD TO BETTER INPATIENT REHABILITATION OUTCOMES, AAP SAYS

atest research presented at the Association of Academic Physiatrists (AAP) 2017 Annual Meeting found that avoiding typical post-surgical precautions after hip replacement surgery may lead to shorter length of stay (LOS) in inpatient rehabilitation hospitals and faster overall recovery. After hip replacement surgery, patients are typically moved to inpatient rehabilitation hospitals and units (IRH/Us) where they spend a considerable amount of time learning and practicing precautions — such as bending the hip past 90 degrees, turning the knee or foot inward and crossing the leg past the middle of the body—to protect their new hip from dislocation. Researchers from Marianjoy Rehabilitation Hospital in Wheaton, Ill. compared inpatient rehabilitation outcomes between patients who followed these precautions and those who did not. Thirtyone (31) patients were admitted to inpatient rehabilitation without post-operative surgical precautions, and 37 were admitted with precautions. The two groups were on average, 67 years of age and had similar functional independence measures (FIM) scores when admitted. At the time of discharge, both groups had made similar progress in their overall FIM scores and their daily FIM improvements, but differed in length of stay (LOS). The researchers found that the group who entered the IRH without post-operative precautions typically had a three-day shorter LOS than those who observed precautions (nine days and 12 days, respectively). Ultimately, this resulted in improved FIM efficiency for the group that did not observe precautions, and this group did significantly better in daily motor FIM and overall FIM gains. “We noticed postoperative hip precautions were being dictated by the surgeon’s preference rather than the operative technique,” explains Noel Rao, MD, FAAPM; professor and chairman, Rosalind Franklin University of Medicine and Science, and former vice president of medical affairs and residency director at Marianjoy Rehabilitation Hospital, and lead investigator in the study. “Furthermore, surgeons using the same approach in the same surgical group varied on whether they placed patients under restrictions. Some did and some did not, which raised the question - what would be the impact of not having restrictions on hip dislocation rates and length of stay using the anterior surgical

method? If reduced restrictions do not increase hip dislocation rates and patients have a shorter length of stay, they could be rehabilitated and reintegrated into the community sooner.” Dr. Rao’s team looked at the medical records of 68 people who underwent hip replacement surgery and noted each individual’s FIM at admission, daily during their stay and at discharge. The researchers also noted each person’s LOS and discharge disposition. “While both groups made similar overall progress during inpatient rehabilitation, the group that did not observe post-operative precautions made gains within a shorter timeframe as they did not have restrictions to follow and therefore did not have to spend time learning and consistently demonstrating hip precautions, which takes some time to accomplish,” explains Dr. Rao of the findings. “The absence of restrictions allowed these patients to improve their FIM scores quicker resulting in a shorter length of hospital stay. Additionally, we anecdotally observed that reduced restrictions do not increase hip dislocation rates.” Dr. Rao suggests that healthcare professionals should not be overly concerned about using hip precautions after anterior approach hip replacement surgery, if the operating surgeon has made a clinical determination that the patient doesn’t need such precautions. Patients considering hip replacement should discuss their surgeon’s preference for post-operative precautions and determine if they agree with their surgeon’s method. Regarding next steps, Dr. Rao explained that with newer surgical techniques and improved surgeon expertise, more patients are being discharged home directly following this procedure. This is more evident in patients not requiring hip precautions than in patients who have restrictions and if this trend continues expanding existing outpatient therapy programs to accommodate more of these patients should be examined. Source: Are We Being Too Cautious with ‘New Hips’ Post-Operative Precautions May Not Be Necessary After Hip Replacement, 6-Feb-2017, http://www.newswise.com/articles/are-we-being-toocautious-with-new-hips.

WEEKEND HOSPITAL ADMISSION OF OLDER ADULTS WITH HEAD TRAUMA LINKED TO HIGHER MORTALITY RISK

urther research presented at the Association of Academic Physiatrists (AAP) 2017 Annual Meeting in Las Vegas found that older adults who are admitted to the hospital with head trauma over the weekend have a 14 percent increased risk of dying than those admitted on a weekday. Weekend hospital admission is associated with higher instances of death in cardiovascular emergencies and stroke, but the effect of weekend admissions on head trauma patients is not well defined. Researchers from University of Texas Southwestern Medical School, Johns Hopkins University School of Medicine, and The Johns Hopkins Bloomberg School of Public Health, used data from the 2006, 2007 and 2008 Nationwide Inpatient Sample — a large publicly available dataset that contains a sampling of data for seven million hospital stays each year — to determine if older adults admitted to the hospital for head trauma over the weekend were at a higher mortality risk than those admitted during the week. “Older adults are some of the most vulnerable members of our society, and multiple studies point to differences in outcomes for older adult patients. After seeing the weekend trend in other areas, we wanted to see if a similar pattern existed for older adult patients suffering traumatic head injuries,” says Lead Investigator in the study, Salman Hirani, MD. The team identified 38,675 head injury patients in the sample who met their criteria —including serious and severe head injuries based on the Abbreviated Injury Scale (injuries from minor to not survivable). From the initial group, they isolated 9,937 patients who were admitted on the weekend. The average age of both weekend and weekday

patients was 78. Weekend patients had fewer additional injuries and co-existing diseases outside of head trauma than those admitted during the week. Weekend patients were also predominantly female when compared to weekday patients (52 percent vs. 50). Dr. Hirani noted the median length of stay (LOS) in the hospital was one day shorter for weekend patients (four days vs. five), and there were no significant differences in the charges incurred during each patient’s stay - both groups averaged around $27,000 per patient per stay. Where the groups differed was in the percentage of patients who did not survive their injuries - with weekend patients having a 14 percent higher risk of death than weekday patients. “Overall, weekend patients were less severely injured, had fewer co-existing diseases and conditions, and generated the same amount of charges for their care as weekday patients, yet they experienced a greater likelihood of death,” says Dr. Hirani. “While we are not sure of the exact reason for this, we can continue to investigate and encourage hospitals to take a look at their own outcomes in order to put into place policies that would improve survival for older adults with traumatic brain injuries. Ultimately, we know that Level I trauma centers do not exhibit this weekend effect. It may then be important for an older adult with a TBI, especially those occurring over the weekend, to be admitted to or transferred to a Level I trauma center or a facility with full time staffing around the clock as these patients may require closer observation.” Source: Association of Academic Physiatrists (AAP). “The Weekend Effect: Day of Hospital Admission Affects Outcome of Head Trauma Patients.” ScienceDaily, 6 February 2017. www.sciencedaily.com/releases/2017/02/170206084919.htm

STUDY FINDS FINANCIAL PENALTIES MAY REDUCE HOSPITAL READMISSIONS

ccording to a new study published in the Journal of the American Medical Association (JAMA) hospitals that were financially penalized for too many readmissions were more likely than non-penalized institutions to subsequently reduce readmissions for all conditions.

The Hospital Readmission Reduction Program (HRRP) was enacted as part of the Patient Protection and Affordable Care Act (ACA) and imposed financial penalties beginning in October 2012 for hospitals with higher-than-expected readmissions for the following three conditions: 1. 2. 3.

acute myocardial infarction (AMI; heart attack), congestive heart failure (CHF), and pneumonia among fee-for-service Medicare beneficiaries.

Since the program began, thousands of hospitals have been subjected to nearly $1 billion in penalties for not reducing readmissions. To determine whether these penalties resulted in fewer readmissions for 24

the three target conditions, as well as for all conditions, Nihar R. Desai, M.D., assistant professor of medicine at Yale School of Medicine and colleagues examined data from 2008 and 2015. The study found that hospitals that were subject to penalties under HRRP had more significant reductions in readmissions than hospitals that were not penalized and hospitals that were subject to penalty also seemed to focus their efforts on reducing readmissions for conditions that were the basis of the penalty. In contrast, hospitals that weren’t penalized seemed to reduce readmissions across all conditions. The study also noted that hospitals seem to have responded to these external policy initiatives, indicating that they indeed work, but readmission reductions have increased since the initial push. For the study abstract, Association Between Hospital Penalty Status Under the Hospital Readmission Reduction Program and Readmission Rates for Target and Nontarget Conditions, December 27, 2016, please see http://jamanetwork.com/journals/jama/article-abstract/2594718

AMRPA Magazine March 2017

THE AUDITORS ARE BACK IN TOWN By Lisa Werner, MBA, MS, SLP

rom every corner of the country, I am hearing about payment denials. Inpatient rehabilitation is back on the radar screen. Some of the reports that I am getting indicate that the reasons for denial are similar to years past, while others are new twists. Technical denials are still a thorn in the side of the rehabilitation provider, and now with the addition over the past two years of new quality indicators, we have even more things to keep watch over and less time to do it. As a rehabilitation consultant I see varying levels of quality in medical charts. It is time to dust off the regulations and be sure that your charts are not leaving you vulnerable to denial. Your pre-admission screenings must support the need for close medical supervision, intense rehabilitation services and the patient’s ability to make significant practical improvement in a reasonable amount of time. A good pre-admission screening summarizes the medical conditions that will require close medical supervision while the patient is in acute rehabilitation. It should also include a functional assessment that reflects the need for at least two disciplines of therapy. Further, it should include a statement about whether or not the patient can be expected to make significant improvement while in rehabilitation. If it does not state these things clearly, look for evidence of them in the information that is present. CMS gave us a laundry list of items that they expected to see in a pre-admission screening to justify the admission. These include: •

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

•

Expected level of improvement

•

Expected length of time needed to reach that level of improvement

patient’s medical and functional goals and progress •

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

•

Evaluation of the patient’s risk for clinical complications

•

Conditions that caused the need for rehabilitation

•

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

•

Expected frequency and duration of treatment in the IRF

•

Anticipated discharge destination

•

Any anticipated treatments

•

Other information relevant to the care needs of the patient

•

Estimated length of stay

•

Patient’s medical prognosis

The history and physical written by the physician should identify functional limitations and include a review of systems and a complete list of problems that could interfere with the patient’s rehabilitation outcomes. This portion of the document may be completed by a physician extender. The post-admission physician evaluation myst be completed by the rehabilitation physician within 24 hours after the patient is admission. This document, which can be part of the H&P, must include the patient’s rehabilitation potential and expected outcomes. A plan for medical care, therapy, and rehabilitation nursing should also be thoroughly documented.

•

Anticipated functional outcomes

•

Anticipated discharge from the IRF

•

Anticipated interventions that support the medical necessity of the admission, based on the patient’s impairments, functional status, complicating conditions, and any other contributing factors. This should include these details about the PT, OT, SLP, and/or P/O therapies expected:

post-discharge

The rehabilitation physician is required to see the patient at least three times per week in addition to the H&P in the patient’s first week. In order to reflect the input of the rehabilitation physician, the notes should: •

Assess the patient both medically and functionally, with an emphasis on the important interactions between the

The documentation of the physician visits should be audited for quantity and quality. Problems in both of these areas have been noted in some of the payment denials that I have heard about. The rehabilitation physician must complete the overall plan of care by the end of the patient’s fourth rehabilitation day. This document should include:

destination

• Intensity (# of hours/day) • Frequency (# of days/week) • Duration (total # of days during IRF stay) Common errors that I see are late physician signatures and physicians signing incomplete documents. Be sure the doctors are attesting to a plan that is thorough and complete when they sign the overall plan of care. If your therapy and nursing staff enter their own goals and interventions into the plan of care, they 25

should do so immediately following the evaluation to avoid a delay in the physician completing the document. The weekly team conference documentation often shows who is involved in the patient’s care on a daily or weekly basis. Conferences should take place within the first week of the patient’s stay and weekly thereafter. Not completing the conferences every seven days has been cited as a reason for denial. Remember that if a team conference is moved due to a holiday, the conference still has to occur within a seven day period, so account for that when you select an alternate date to ensure that you do not exceed seven days between conferences. Some providers have instituted an informal conference with the key team members to ensure that a week does not go by without meeting to discuss the patient’s progress, plan and ongoing needs. Also, be certain that all of the key players are present for team conference. A member of each discipline treating the patient should attend conferences on a weekly basis. Ensure that the attendance list notes a member from each treating discipline. When appealing a payment denial related to team conference, be explicit in your appeal letter about how many and which types of team members are involved in ensuring that the patient returns to independence because this interdisciplinary care is a unique

characteristic of inpatient rehabilitation care. In your letter, identify the barriers to discharge as noted during the weekly team conference. To show medical necessity it is good to illustrate the patient’s immediate barriers to discharge and the need for continuation of the rehabilitation program on the team conference form. If these are not present, but are implied, you may need to use your appeal letter to point out the conclusions that your team drew from their discussion during the conference. You should also find evidence in the weekly summary that reflects the patient’s potential for significant practical improvement and need for continued services. Medicare Administrative Contractors (MACs) have also been scrutinizing the number of therapy minutes provided in a mode other than individual for a while now. They continue to pressure providers to complete all therapy on an individual basis when it is counted in the required three hours. Group therapy is encouraged to be used as an adjunct to individual or in addition to the daily requirment. CMS has not issued a rule on how much time may be spent in each mode of therapy, so the MACs are pushing their own agenda. Keep an eye on your utilization of therapy minutes by mode. In eRehabData® you can track your time spent and compare it to the regional and national averages. You may elect to use information on national or regional trends in an argument about appropriateness of different modes of therapy. Definitely watch the data to be

sure that your utilization does not indicate that you are an outlier. The newest item that I am hearing cited in denial letters relates to therapy minutes. Auditors are comparing the therapy minutes documented to those reported on the IRF-PAI. If there is a discrepancy, they are noting that as a reason for denial. Be sure that you are comparing therapy notes to the minutes recorded on the IRFPAI. Those of you working in electronic medical records may pull data from a report. In order to ensure accuracy, the documentation should be compared to the charges entered. Human errors do occur, and I know this based on the audits that I complete on behalf of providers. Lastly, double-check the discharge destination reported on the IRF-PAI compared to actual. I have heard of denials related to inconsistent information. Typical errors that I see fall in the area of home versus home with home health care. They are easy to confuse, but accurate reporting of data matters. I expect that in time there will be scrutiny placed on the quality indicator data recently added to the IRF-PAI, but at this point I have not heard of any denials related to that information. Good luck out there. I know that denials are both costly and time consuming. Be sure you are doing your due diligence now to minimize potential denials later.

AMRPA Magazine March 2017

AMRPA SUBMITS COMMENTS TO CMS REGARDING PROPOSED REFINEMENTS TO PRESSURE ULCER MEASURE Editor’s Note: On November 16, 2016, the American Medical Rehabilitation Providers Association (AMRPA) submitted comments to the Centers for Medicare and Medicaid Services (CMS) and to RTI International expressing its support regarding proposed refinements to the terminology for the pressure ulcer (NQF #0678) quality measure. The complete letter is provided below and is available on the www.amrpa.org website. November 16, 2016 RTI International 3040 E Cornwallis Rd Durham, NC 27709 Delivered electronically to PressureUlcerPublicComments@rti.org.

Expert Panel (TEP) and supported by the National Pressure Ulcer Advisory Panel (NPUAP). 2. Align the terminology for the pressure ulcer measure specifications and assessment items with terminology used by the NPUAP Pressure Injury Staging System released. In April 2016, the NPUAP replaced the term “pressure ulcer” with the term “pressure injury,” stating the “change in terminology more accurately describes pressure injuries to both intact and ulcerated skin.” New NPUAP guidance further clarified that “in the previous staging system Stage 1 and Deep Tissue Injury described injured intact skin, while the other stages described open ulcers.” According to NPUAP, this led to “confusion because the definitions for each of the stages referred to the injuries as ‘pressure ulcers’.” I. Numerator

To RTI International and the Centers for Medicare and Medicaid Services: This comment letter is submitted on behalf of the American Medical Rehabilitation Providers Association (AMRPA) in response to the Call for Public Comment on proposed refinements to the quality measure Percent of Residents/Patients with Pressure Ulcers that are New or Worsened (Short-Stay) (NQF #0678). The project is titled Refinement of Percent of Residents/ Patients with Pressure Ulcers that are New or Worsened (ShortStay) (NQF #0678) and Language Modifications Being Explored with the Term “Pressure Injury.” AMRPA is the national trade association whose members provide rehabilitation services across the spectrum of health care settings including inpatient rehabilitation facilities (IRFs), hospital outpatient departments (HOPDs), and settings independent of the hospital, such as comprehensive outpatient rehabilitation facilities (CORFs), rehabilitation agencies, longterm care hospitals (LTCHs), and skilled nursing facilities (SNFs). 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. We appreciate the opportunity to comment on the refinements proposed to NQF #0678 pursuant to how the measure is implemented in the IRF Quality Reporting Program (QRP). CMS seeks comment on the following proposed modifications to NQF #0678 for post-acute care providers: 1. Add “unstageable pressure ulcers due to slough or eschar, unstageable pressure ulcers due to non-removable dressing or device, and unstageable pressure ulcers presenting as deep tissue injuries” to the measure numerator. This was as recommended by a cross-setting pressure ulcer Technical

A. Pressure ulcers due to slough or eschar AMRPA supports the inclusion of unstageable pressure ulcers due to slough or eschar or due to non-removable dressing/device in the numerator, which we also supported when it was proposed in the FY 2016 IRF PPS proposed rule. Furthermore, we appreciate that CMS does not propose to include suspected deep tissue injuries (sDTIs) in the numerator. We do not think it is appropriate to include sDTIs because much is still unknown about including whether there is an actual deep tissue injury. Many sDTIs heal without opening and it would be unfair to penalize a provider for these. B. Measure Specifications The proposed refinements would change how the IRF measure is calculated. It would use IRF PAI Item M0300, “Current Number of Unhealed Pressure Ulcers at Each Stage” to calculate new or worsened pressure ulcers by subtracting the number of pressure ulcers that were present on admission from the total number of pressure ulcers for each stage, all of which is contained in M0300 assessment data. Presently, the measure is calculated using IRF PAI Item M0800A-F, “Worsening in Pressure Ulcer Status Since Admission” which is assessed at discharge. This item requires providers to “indicate the number of current pressure ulcers that were not present at admission or were at a lesser stage at admission” for Stages 2-4 pressure ulcers and three types unstageable pressure ulcers. In other words, the present method requires providers to do the calculation for Item M0300 themselves and then enter the data into an additional assessment item. AMRPA supports modifying the measure calculation to using M0300 items directly. We commend CMS and its contractors 27

on these efforts to simplify the measure calculation process. However, these simplification efforts should extend to the parallel assessment tools as well. Specifically, we request that CMS clarify whether M0800 would still be included on the IRF PAI if it no longer feeds into NQF #0678 calculations. If M0800 does not serve quality reporting purposes, AMRPA recommends that it be eliminated from the IRF PAI. This would reduce the number of items providers must report and thus decrease burden.

instead of Item M0800. However, we request that CMS clarify whether Item M0800 would still be on the IRF PAI if it no longer feeds into NQF #0678 calculations. AMRPA recommends that this reporting burden be eliminated from the IRF PAI if it no longer serves quality reporting purposes. B. AMRPA supports revising the terminology for the NQF #0678 specifications and post-acute care assessment items in order to align it with terminology used by the NPUAP Pressure Injury Staging System.

II. Terminology AMRPA supports revising the terminology for the NQF #0678 specifications and post-acute care assessment items in order to align it with terminology used by the NPUAP Pressure Injury Staging System. We believe that changing “pressure ulcers” to “pressure injuries” will help reduce confusion for IRFs in reporting NQF #0678. AMRPA commends CMS and its contractors for adopting guidance from national advisory organizations which are followed by practicing clinicians.

III. Summary AMRPA appreciates the opportunity to comment on the project Refinement of Percent of Residents/Patients with Pressure Ulcers that are New or Worsened (Short-Stay) (NQF #0678) and Language Modifications Being Explored with the Term “Pressure Injury.” In summary: 1. We support modifying the measure numerator to include unstageable pressure ulcers slough, eschar, or nonremovable dressing/device.

If you have any questions regarding our recommendations, please contact Carolyn Zollar, J.D., Executive Vice President for Government Relations and Policy Development, (czollar@ amrpa.org) or Mimi Zhang, Policy and Research Associate (mzhang@amrpa.org) at 202-223-1920. 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

Suzanne Kauserud, FACHE, MBA, PT Chair, AMRPA Quality Committee Vice President/Administrator, Carolinas Rehabilitation-Charlotte Carolinas HealthCare System

A. We support using Item M0300 to calculate the measure

Leadership Forum and Congressional Fly-In Medical Directors Symposium Rehab Administrators Workshop: How to Manage a Successful Rehab Unit

MARCH 20-22, 2017 · WASHINGTON, DC 28

AMRPA Magazine March 2017

JUDGE ORDERS FURTHER RELIEF FOR MEDICARE BENEFICIARIES IN NEED OF SKILLED CARE IN JIMMO V. BURWELL

n February 1, 2017, a federal judge issued a decision for additional relief in the Jimmo v. Burwell case. The case, originally filed in January 2011, challenged Medicare’s use of an “improvement standard” in determining medical necessity for skilled nursing services, home health, and outpatient therapy (“Skilled Care”) on the grounds that it violated Medicare law and deprived Medicare beneficiaries of needed care. Glenda Jimmo, the named plaintiff, and the Center for Medicare Advocacy (CMA) settled that case three years ago, but the court held jurisdiction over the case for a five-year period in case the Centers for Medicare and Medicaid Services (CMS) did not fully implement the settlement agreement. (The case has limited application to inpatient hospital rehabilitation because there are requirements for expectation of improvement that apply to IRFs through regulation.) The court returned to the case upon CMS’s request for additional relief and the request was granted. The Jimmo settlement established that CMS and its contractors were using an improvement standard to effectively deny coverage, or continuation of coverage, of Skilled Care on the basis that an individual was not improving, without regard to whether the care was reasonable and necessary. The case applies to both Medicare fee-forservice and Medicare Advantage. Judith Stein, Executive Director of CMA, stated that thanks to the February decision, “Medicare adjudicators and providers should have no doubt about what the correct coverage policy is. This should open doors to critically important care for people with long-term, debilitating and chronic conditions.”

Background The Center for Medicare Advocacy brought the case on behalf of a class of Medicare beneficiaries. Other plaintiffs in the case included the National Multiple Sclerosis Society, the Paralyzed Veterans of America and the Parkinson’s Action Network (now the Michael J. Fox Foundation for Parkinson’s Research). The parties filed a Settlement Agreement in October 2012, which was then approved by the court in January 2013. Centers for Medicare and Medicaid Services (CMS) hosted a national provider call, as stipulated in the educational campaign of the Settlement Agreement, in December 2013. Despite these events, Medicare continued to base coverage decisions on the “improvement standard.” Key Elements of the February Ruling The February decision follows an August 2016 decision in the case, where the judge held that the Secretary of Health & Human Services had failed to explain that Medicare coverage for Skilled Care was based on a “maintenance standard” i.e., the need to maintain or slow decline of the beneficiary’s condition, rather than an “improvement standard.” The February decision ordered the Secretary to enforce a Corrective Action Plan which would make Medicare coverage determinations in Skilled Care based on a “maintenance standard.” The Plan includes: •

•

well as a statement that CMS has consistently denied the existence of such a standard, (the “Disavowal Statement”); One set of Frequently Asked Questions (FAQs), to be housed on the new Jimmo webpage, that would clarify the Jimmo settlement and its policy implications; and, A requirement that CMS direct its Medicare Administrative Contractors (MACs) and Medicare Advantage Organizations (MAOs) to conduct additional training on Jimmo.

Additionally, the judge ruled that the Secretary must organize a new National Call (to correct the one from December 2013) in which it will explain the Disavowal Statement. Michael Benvenuto of Vermont Legal Aid, commented that: “The original National Call was riddled with misstatements and confusion. Requiring a new National Call should clarify that a maintenance standard, not an improvement standard, controls [coverage of Skilled Care under the Medicare program].” The judge ordered the Secretary of Health and Human Services to certify compliance with its ruling by September 4, 2017. Written by Steve Postal, Director, Health Policy, Powers Law Firm.

A new Jimmo website to be housed on www.cms.gov which will: 1) provide access to public documents related to Jimmo; 2) provide a message about the February decision at the top of the webpage; and 3) direct providers and suppliers with questions about claims to the appropriate Medicare Administrative Contractor (MAC); A statement for inclusion on the Jimmo webpage of CMS disavowing the “improvement standard,” as

COLLABORATIVE RESEARCH PROJECT EXAMINES FINANCIAL IMPACT OF CMS TRANSITION EDS BASED PAYMENTS By Lovelyn M. Robinson, Editorial and Research Assistant

valere Health, a consulting firm based in Washington, D.C., recently released the results of a research project under joint collaboration with industry health plan partner, the Resource Initiative and Society for Education (RISE). The findings were published in RISE RAPSEDS Collaboration Research Project: Executive Summary with the full report expected to be released at a later date. The report analyzed data from eight Medicare Advantage Organizations (MAOs), representing 1.1 million beneficiaries in more than 30 Medicare Advantage (MA) plans operating across the country, to understand the impact of shifting the determination of plan risk scores from the traditional Risk Adjustment Processing System (RAPS) to the new Encounter Data System (EDS). As we know, more beneficiaries are switching from traditional fee-for-service (FFS) Medicare to Medicare Advantage and AMRPA members have faced challenges in receiving patient referrals from managed care plans.

The study evaluated the risk score and financial impact of the transition by comparing results reported back to plans from running the same set of claims data through both the RAPS process and the EDS process.

data elements (dates of service, provider type, diagnosis code and beneficiary Health Insurance Claim (HIC) number), while the EDS system utilizes all elements from the claims (i.e., HIPAA standard 5010 format 837). CMS intends to transition gradually from RAPS to EDS-based payments, starting with 10 percent of the payment based on EDS in 2016, increasing to 25 percent in 2017 and 50 percent in 2018. According to CMS, the diagnoses captured in EDS should not be different from those identified in RAPS. Findings The study found that transitioning to EDSbased payments would significantly reduce the identification of diagnoses which are used to calculate the plans’ risk scores. These scores are reflective of the disease burden of the plans’ membership. Compared to RAPS, the average risk scores resulting from the EDS process were 26 percent lower in the 2015 payment year (based on 2014 claims data) and 16 percent lower in the 2016 payment year (based on 2015 claims data). The lower risk scores were primarily the result of 35-40 percent fewer Hierarchical Condition Category (HCC) diagnoses identified in EDS compared to RAPS.

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Avalere found that average risk scores using EDS were 16 percent lower in the 2016 payment year compared to scores under RAPS. Transitioning to EDS-based payments would significantly reduce the identification of diagnoses which are used to calculate the plans’ risk scores.

The report states that the risk score differences will have significant negative implications for MAOs and the 18 million beneficiaries they serve. For example, if there had been a full transition from RAPS to EDS in 2016, using an $800 bid rate would have equaled to an average reduction of 16.1 percent in per member per month (PMPM) rates, thereby representing a $260.4 million decrease per year for the average plan in the study. Table 3 lists the top ten HCCs from RAPS and their frequency of occurrence for both RAPS and EDS. The same HCCs comprised the top ten using EDS, although their relative frequencies

CMS Transition to EDS Based Payments Since 2000, the Centers for Medicare and Medicaid Services (CMS) has adjusted Medicare Advantage capitated payments based on beneficiaries’ demographic characteristics and health status, also known as “risk adjustment,” in order to modify payments to be more reflective of enrollees’ health costs. MA plans have been transitioning from the traditional RAPS to the new EDS where MAOs submit their members’ claims and CMS filters the data. The two approaches utilize different levels of information in their respective processes. The RAPS system involves only five necessary 30

AMRPA Magazine March 2017

somewhat varied from RAPS. The frequency of each of these top ten HCCs were consistently lower in EDS than in RAPS. On average, these HCCs were identified in roughly 10 percent of the members based on RAPS in both 2014 and 2015 (for 2015 and 2016 payment years). However, when assessed using EDS, the average rate identified was 5.9 percent based on 2014 data. The rate increased in 2015 to 7.4 percent after CMS and health plan corrective actions. In summary, 35-40 percent fewer HCCs were identified on average by EDS compared to RAPS using a large representative sample of 2014 and 2015 MAO claims data. This difference results in significantly lower risk scores and lower PMPM rates using EDS compared to RAPS. Conclusion According to CMS, the transition to EDS-based payment calculations is projected to be budget neutral to Medicare Advantage plans. However, the study authors conclude that until rigorous measures to evaluate claims-based errors are taken and increased transparency in EDS reporting is provided, the transition to an encounter data-and participating plans will continue. Related Studies on RAPS Risk Scores Milliman Study Milliman released a white paper in January 2017 estimating the difference in plan risk scores between RAPS and encounter data and found that the median percentage difference between PY2016 risk scores based on RAPS and EDS-based risk scores is -4.0 percent. At a rate of 10 percent encounter data, the 4.0 percent median difference in risk scores would also result in a median payment reduction of 0.4 percent in 2016. Government Accountability Office (GAO) Study In addition, the Government Accountability Office (GAO) also released a new report updating its July 2014 study on the steps CMS has taken to validate MA encounter data. GAO concluded that CMS has yet to take needed steps to fully address encounter data accuracy, such as reviewing medical records, and the agency should “fully assess data quality before use.” America’s Health Insurance Plans (AHIP) Brief In February America’s Health Insurance Plans (AHIP) also released a brief that further shows that risk scores are being reduced through the implementation of the encounter data system. For the RISE RAPS-EDS Collaboration Research Project Executive Summary please see http://avalerehealth-production.s3.amazonaws.com/uploads/ pdfs/1486419514_Avalere_RISE_RAPS-EDS_Collaboration_Research_Project_Executive_Summary.pdf

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AMRPA Magazine March 2017