November 2019 • Vol. 22, No.11
The American Medical Rehabilitation Providers Association is pleased to introduce its new logo.
Advocating. Educating. Connecting.
The new AMRPA logo complements the association’s new Vision and Mission Statements, helping solidify its role as a leader in the medical rehabilitation field. VISION STATEMENT Transforming lives through access to the highest quality of medical rehabilitation care. MISSION STATEMENT Advancing the field of medical rehabilitation through advocacy, education, and the promotion of access to care.
November 2019 • Vol. 22, No. 11
The official publication of the American Medical Rehabilitation Providers Association (AMRPA)
Table of Contents Letter from the Chair
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Legislative Update
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CMS Releases Final Discharge Planning Rule
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Don’t Let Your Case Mix Index Take a Hit
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Analyzing Recent Medicare Executive Orders: Will Future Mandated Rulemaking Address or Exacerbate IRF Access Issues in the Medicare Advantage Program?
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Carolyn Zollar, MA, JD AMRPA Senior Policy Counsel
GAO: CMS Needs to Enhance Assessment of Its Quality Measures and Related Spending
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Mimi Zhang AMRPA Director of Payment Innovation, Quality and Research
Select GAO and HHS OIG Reports on Nursing Homes and Assisted Living Facilities
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CMS Finalizes Burden Reduction Policies for Hospitals and Other Facility Providers
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AMRPA Submits Comments to CMS on the Physician Fee Schedule and Quality Payment Program
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MedPAC Proposes Three Measures to Align Cost Sharing and Benefits in a Unified PAC PPS
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House Committee on Small Business Holds Hearing Focused on Prior Authorization Implications
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AMRPA Responds to Request for Information on Price Transparency Proposal
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Richard Kathrins, PhD Chair, AMRPA Board of Directors, President & CEO, Bacharach Institute for Rehabilitation John Ferraro, MS AMRPA Executive Director Kate Beller, JD AMRPA Executive Vice President for Government Relations and Policy Development
Remy Kerr, MPH AMRPA Health Policy and Research Manager Patricia Sullivan AMRPA Senior Editor Brian McGowan Design and Layout AMRPA Magazine, Volume 22, Number 11
AMRPA Magazine is published monthly by the American Medical Rehabilitation Providers Association (AMRPA). AMRPA is the national voluntary trade association representing inpatient rehabilitation hospitals and units, hospital outpatient departments and settings independent of the hospital, such as comprehensive outpatient rehabilitation facilities, rehabilitation agencies and skilled nursing facilities. SUBSCRIPTION RATES: Member institutions receive the AMRPA magazine as part of their membership dues. Send subscription requests to AMRPA, 529 14th St., NW, Washington, DC 20045 USA. Make checks payable to AMRPA. ADVERTISING RATES: Full page = $1,500; Half page = $1,000; Third page = $750. Ads may be B&W or full color. Contact Brian McGowan, bmcgowan@kellencompany.com for additional specs and acceptable submission format. Advertising Contact: Julia Scott, AMRPA, 529 14th St., NW, Washington, DC 20045 USA, Phone: +1-202-207-1110, Email: jscott@amrpa.org. Statements of fact and opinion are the responsibility of the authors alone and do not imply an opinion on the part of the officers or the members of AMRPA. All content ©2019 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. POSTMASTER: Send address changes to Kellen Company, Attn: AMRPA Magazine Circulation 529 14th St., NW, Suite 1280, Washington, DC 20045
AMRPA Magazine / November 2019
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Letter from the Chair
Richard Kathrins, PhD, President & CEO, Bacharach Institute for Rehabilitation RKathrins@bacharach.org
Fall Conference Highlights A few weeks ago, AMRPA held its 17th Annual Educational Conference & Expo. We had more than 400 attendees join us in San Diego for what was an informative and interactive meeting. A wide-range of individuals spoke at the conference. We heard from Sergeant First Class Cory Remsburg who was in one of the first troops sent to Iraq in 2003; during his 10th combat deployment, he was wounded by an enemy improvised explosive device. In January 2014, he was highlighted by President Barack Obama during the State of the Union address. His recovery and path through rehabilitation was inspiring, uplifting, and motivating. The conference also recognized leaders in the medical rehabilitation field who were nominated by their peers. Established in 2018 by AMRPA, the Edward A. Eckenhoff Memorial Award & Lecture honors one of the Association’s founders and a visionary leader in the rehabilitation field. This year’s awardee was Dr. Phil Loverso, CEO of Casa Colina Hospital and Centers for Healthcare. Phil is an AMRPA member and past board chair who has demonstrated exemplary skills in the areas of advocacy, public policy, clinical excellence, education and research. He has contributed invaluable leadership and distinguished service to the field of medical rehabilitation. Phil has mentored many of us in the field and is someone with a very strong voice committed to moving our field forward. Phil provided great insight into the history and development of AMRPA, and the role it has played in ensuring access to rehabilitation in our communities. We also presented the AMRPA Leadership Excellence Award to Christine MacDonell. Chris is the Managing Director of Medical Rehabilitation and International Aging Services at the Commission on Accreditation of Rehabilitation Facilities (CARF). Chris has exemplified leadership, vision and excellence in transformative leadership, lifelong service in the field, and advocacy at the state and national levels. It is through her efforts that medical rehabilitation and accreditation of programs and services have expanded globally, to ensure quality of programs, services and outcomes for individuals with disabilities. The conference featured a broad array of other speakers who provided great insights into our field and offered real-world solutions to issues in post-acute care. We also heard about our legislative and regulatory priorities and issues that may impact us in the near and far term. Research was a thread throughout the conference with high-quality platform presentations and more than 40 poster presentations that stimulated discussion between the researchers and attendees. AMRPA updated the group on our internal strategic planning process and an initiative to ensure that we are the leading authority and voice for the field. In the past year, AMRPA convened a branding taskforce to examine our association’s vision and how to leverage our brand equity to best position us as we move forward. We unveiled a new logo and an updated mission statement that reaffirms our commitment to advocacy and maintains our relationship with federal policy makers. We continue to develop our educational programs, including this conference, and our Regional Meeting Series, the IRF Boot Camp, and our webinars. With this in mind, our new mission is: Advancing the field of medical rehabilitation through advocacy, education and the promotion of access to care. Our education programming was a result of yearlong work by our Education Committee lead by Kent Riddle, CEO of Mary Free Bed Rehabilitation Hospital. Thank you to the members of our Education Committee, AMRPA staff and Kellen, our management company, for their time and leadership – a lot of very hard work went into making this conference possible. We hope that you will be able to join us at our Spring Conference and Congressional Fly-In in Washington, DC, March 22-24, 2020.
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AMRPA Magazine / November 2019
Find new and exciting opportunities in AMRPA’s Career Center. Our newly updated Career Center provides services and resources to help the medical rehabilitation field meet their professional goals. All rehabilitation professionals may browse and apply for jobs at no cost, and AMRPA members will receive discounted rates for posting positions.
Visit our Career Center Here:
careercenter.amrpa.org
Begin by creating your free Career Cast account, which can be found on the top right hand corner of the website. From there, you can upload and manage multiple resumes, browse through hundreds of job postings, and even research salaries of the positions in question! AMRPA members and affiliates may also purchase Posting Packages at a standard, premium, or platinum level. AMRPA members will receive a 50% discount on all job postings. For questions about our Career Center, please contact Elizabeth Katsion, AMRPA Member Services Associate, at ekatsion@amrpa.org or 202-207-1102.
AMRPA Magazine / November 2019
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Legislative Update
Budget Uncertainty for FY 2020 Appropriations Congress returned after a two week recess in early October to focus on the remaining eight weeks of session on the legislative calendar (although it may last longer) with a laundry list of high priority initiatives and deadline-driven items. Whether Congress can reach agreement on all of these items will depend in part on the unfolding impeachment process in the House, which officially began with an impeachment inquiry announced by Speaker Nancy Pelosi (D-CA) on September 24.
Martha M. Kendrick, Esq., Partner, Akin Gump Strauss Hauer & Feld LLP
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ongress faces a November 21 deadline C to finalize FY 2020 Appropriations, as well as other expiring health care extenders. Another stopgap funding bill extending the deadline into December or even January is likely. Impeachment inquiry in the House may impact the future of drug pricing and other pending health care proposals, but committees of jurisdiction push on with mark-ups and hearings on Speaker Pelosi’s proposal, H.R.3 CMS proposes long-awaited regulations that amend and create new safe harbors under the Anti-Kickback Statute (AKS) for value-based care, and updates the Stark Law’s regulatory exceptions for valuebased care. A final rule implements discharge planning requirements mandated under the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act). New Presidential Executive Order focuses on ensuring the future of Medicare.
AMRPA Magazine / November 2019
Before adjourning for the two-week recess, Congress passed a short-term continuing resolution (CR) to provide stopgap funding for the federal government through November 21. The CR also extends a number of expiring health programs through November 21, and delays the Medicaid Disproportionate Share Hospital (DSH) pay cuts until then. We expect Congress to pass another short-term CR by November 21 that would last until mid-December. The House has passed 10 of its 12 appropriations bills while the Senate has moved the same number of bills out of the Senate Appropriations Committee. House and Senate appropriators continue to negotiate on the FY 2020 funding levels, and Senate may vote on a package of possibly bipartisan, non-defense Appropriations bills shortly. The FY 2020 Labor-HHS bill, which stalled in the Senate Appropriations Committee due to a Democratic amendment to repeal the Trump Administration’s abortion policy, is unlikely to be include in this first package. Congress Continues to Tackle Health Care Issues Despite Impeachment Inquiry Drug pricing will continue to dominate the discussions in Washington. House Democratic leaders have indicated they hope to vote on the Lower Drug Costs Now Act (H.R. 3) later this month, but the bill must work its way through three committee mark-ups, which could take longer than expected. The Congressional Budget Office (CBO) estimates that H.R.3 would save Medicare $345 billion over the 2023-2029 period, with the largest savings coming from lower prices for current drugs that are sold internationally, as the bill requires that their prices set a benchmark for government negotiation. CBO projects that pharmaceutical companies could lose up to $1 trillion, potentially reducing research and development and approval of new drugs. In advance of the H.R. 3 mark-up in the House Energy and Commerce Committee on October 17, Chair Frank Pallone (D-NJ) released a modified manager’s amendment that increases the number of drugs subject to government negotiations (up to 35 from 25 drugs) in order to appease more progressive Democrats. The House Education and Labor Committee held a simultaneous mark-up of H.R. 3 on October 17, and the drug pricing legislation passed out of the committees on party lines. The House Way and Means Committee also held a hearing on H.R. 3 on October 17, and announced it will mark-up the legislation on October 22. Despite the impeachment proceedings, House Democrats intended to have the bill considered on the House floor by the end of October.
Senate Finance Committee Chair Chuck Grassley (R-IA) continues to push for action on the Prescription Drug Pricing Reduction Act (S. 2543), which was approved in committee with strong support from Democrats and opposition from most Republicans. It will be difficult to wrap up a year-end deal on drug pricing with bipartisan and bicameral support, particularly with a presidential impeachment inquiry that has significantly heightened tensions between the White House and Speaker Pelosi. Momentum has also slowed on surprise billing as committee leaders mull competing plans in the House and Senate. House Ways and Means Committee Chair Richard Neal (D-MA) and Ranking Member Kevin Brady (R-TX) are discussing a “negotiated rulemaking” proposal, under which the Departments of Health and Human Services and Labor and Treasury would use the federal rulemaking process to set appropriate payment rates and determine the proper use of arbitration for out-of-network billing situations. However, this approach raises questions about the ability of the legislation to generate savings. Ranking Member Brady has publicly expressed support for a surprise billing solution that includes both a benchmark payment rate and arbitration. Meanwhile, some members on the House Education and Labor Committee are asking Committee Leadership to take up a solution floated by Reps. Raul Ruiz (D-CA) and Phil Roe (R-TN). Their bill relies on “baseball-style” arbitration to determine reimbursement and rejects altogether the benchmark payment rate approach found in both the No Surprises Act (H.R. 3630) advanced by the House Energy and Commerce Committee, and the Lower Health Care Costs Act (S. 1895) passed by the Senate Health, Education, Labor and Pensions (HELP) Committee. The leaders of the Energy and Commerce Committee and HELP Committee are continuing to discuss areas of agreement between the committees’ approaches. Given the significant potential cost savings generated from surprise billing legislation—estimated at $21.9 billion over 10 years for the Energy and Commerce Committee proposal, and $24.9 billion for the HELP Committee proposal— and the need to offset the extension of a variety of expiring health provisions, it appears surprise billing legislation is likely to become a higher priority as the end of the year approaches. Trump Administration Releases Update on Stark Law and Anti-Kickback Regulations On October 8, the Department of Health and Human Services (HHS) announced proposed changes to modernize the regulations around the Physician Self-Referral Law (the Stark Law) and the Federal Anti-Kickback Statute (AKS). The changes aim to address concerns that the laws unnecessarily limit the ways in which health care providers can coordinate care for patients. The Stark Law proposed rule would create new, permanent exceptions for value-based payment arrangements. The rule also provides additional guidance on the key requirements for compliance with the law. The Centers for Medicare and Medicaid Services (CMS) seeks comments on the role of price transparency in the context of the Stark Law and whether to require cost-of-care information at the point of referral for an item or service. CMS modified and expanded existing Stark Law exceptions for electronic health record (EHR) technology and created a new exception for the
donations of certain cybersecurity technology, largely in line with the AKS exceptions. CMS also proposes to clarify terminology and concepts critical to the Stark Law in order to ease some of the considerable burden of compliance with the self-referral law and regulations. The AKS proposed rule creates four new safe harbors dedicated to value-based care. These safe harbors allow value-based enterprises (VBEs), which the rule defines broadly as a network of individuals or entities collaborating to achieve a value-based purpose, to share remuneration or provide remuneration to patients, under certain circumstances. VBEs need not be formal entities, allowing groups of providers to create them. However, VBEs must take a number of steps, such as identifying a target patient population and having an accountability body and a governing document, to gain protection under the rules. Other proposed safe harbors promote patient engagement tools and protections for donations of cybersecurity technology and services. HHS’ Office of Inspector General (OIG) noted that it had tailored AKS exceptions more narrowly, to provide a backstop where Stark Law exceptions are abused, but notes that many of the exceptions are similar. Comments are due on December 31, 2019. New Presidential Executive Order Aims to Improve Access to Medicare Advantage On October 3, President Trump signed an Executive Order (EO) on “Protecting and Improving Medicare for our Nation’s Seniors.” The EO aims to improve the traditional fee-for-service Medicare program by building on successful market-based approaches. HHS has 180 days to find ways to modify Medicare FFS payments to more closely mirror Medicare Advantage (MA) plans and commercial plans, and to recommend approaches to transition to market-based pricing, including through the use of MA-negotiated rates, shared savings, and competitive bidding. HHS is also tasked with removing unnecessary barriers to allowing beneficiaries to directly contract with providers. The EO also supports equalizing payments between sites of service and among provider types. HHS is directed to issue rulemaking around network adequacy for MA plans, and reduce regulatory burdens to enable health care providers to spend more time with their patients. The EO critiques “Medicare-for-all” and claims it will “take away the choices currently available within Medicare and centralize even more power in Washington, harming seniors and other Medicare beneficiaries.” Discharge Planning Final Rule Aims to Ease Transition to Post Acute Care On September 25, CMS released a significantly revised proposal for discharge planning requirements, mandated under the Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014, for acute providers moving patients into post-acute care (PAC). The proposed rule was released three years ago, and in its press release CMS explained that the agency understood “the commenters’ concerns and have revised most of the proposed requirements in this final rule to focus less on prescriptive and burdensome details, and more on patient outcomes and treatment preferences.”
AMRPA Magazine / November 2019
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PAC providers must meet the discharge planning requirements as a condition to participate in Medicare and Medicaid programs. The Final Rule also revises the hospital patients’ rights and the facility’s requirements regarding a patient’s access to one’s medical records. Additional new requirements include, requiring facilities to assist patients, their families, or the patient’s representative in selecting a post-acute care (PAC) services provider or supplier by using and sharing PAC data on quality measures and resource use measures. The final rule additionally requiries a hospital to discharge the patient, and also transfer or refer the patient where applicable, along with his or her necessary medical information (current course of illness and treatment, post-discharge goals of care, and treatment preferences), at the time of discharge, to not only the appropriate post-acute care service providers and suppliers, facilities, agencies, but also to other outpatient service providers and practitioners responsible for the patient’s follow-up or ancillary care. The rule requires necessary medical information to be sent to the receiving facility or appropriate PAC provider (including the practitioner responsible for the patient’s follow-up care) after a patient is discharged from the hospital or transferred to another PAC provider. The effective date is November 29, 2019. *** Members of Congress began an intense legislative session as we enter the final few months of the year. Of course the overarching “elephant in the room” is the House Impeachment inquiry. Congress faces several difficult policy decisions and the political environment has now become even more polarized.
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The next Congressional recess for House members runs from November 1 through November 8. Please use this time to meet with your members of Congress to alert and educate them on the negative impact of prior authorization for inpatient rehabilitation services. Please urge Congress to reform the prior authorization program in Medicare. Members of Congress need to be educated about the adverse impact of the use of prior authorization in the Medicare Advantage (MA) program, and the care delays and patient access issues that MA practices present certain types of providers, including inpatient rehabilitation hospitals and units. Both chambers are set to be in recess beginning on November 22 for the week of Thanksgiving. We would be happy to provide you with any additional information and assistance you may need in reaching out to your Senators and individual Members of Congress. Please be in touch if you need any assistance. In this still-new Congress, we greatly appreciate your time and willingness to help AMRPA build relationships and educate members of Congress about key issues of concern to the field.
2019 AMRPA Schedule of Events CONFERENCE DATES 2020 Spring Conference and Congressional Fly-In March 22-24, 2020 Washington, DC AMRPA WEBINARS Wednesday, November 6 from 12:00 p.m. - 1:00 p.m. ET Arrangements with Physicians and Other Risks: What You Don’t Know Can Hurt You Presented by Christina A. Hughes, JD, MPH AMRPA MEMBERS ONLY CALL Wednesday, December 4 at Noon ET eRehabData® WEBINARS: AVAILABLE TO eRehabData® SUBSCRIBERS ONLY Visit eRehabData.com for more Information.
Please visit www.amrpa.org for registration information.
AMRPA Magazine / November 2019
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CMS Releases Final Discharge Planning Rule
On September 30, 2019, the Centers for Medicare and Medicaid Services (CMS) released its long-awaited final rule revising the discharge planning requirements for hospitals, critical access hospitals (CAHs) and home health agencies (HHAs). The rule updates the Medicare and Medicaid Conditions of Participation (CoPs), with which facilities must conform in order to participate in the Medicare program. The final rule also includes an update to current regulations regarding patient rights in hospitals, intended to promote innovation and flexibility, and improve patient care.
Peter W. Thomas, JD, Principal, Powers Pyles Sutter & Verville, PC
This rule followed a proposed rule originally issued in November 2015 under the Obama administration. AMRPA members can find the full text of the rule here, and a CMS fact sheet summarizing the major provisions here. While the final rule rejects a number of policies offered in the proposed rule because they would create unnecessary provider burden, it does adopt several noteworthy changes in the discharge planning process that are both patient-centric and that positively impact inpatient rehabilitation hospitals and units. The final rule implements the discharge planning requirements mandated under the Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014, which required CMS to update the discharge planning rules for all hospitals, including acute care hospitals, long-term care hospitals (LTCHs), inpatient rehabilitation hospitals and units (IRFs), psychiatric hospitals, children’s hospitals and cancer hospitals, as well as CAHs and HHAs. CMS had already addressed discharge planning requirements for skilled nursing facilities (SNFs) in a final rule released in October 2016. CMS emphasizes in the final rule the importance of discharge planning in order to successfully transition patients from hospitals to post-acute care (PAC) settings. It states that the location to which a patient may be discharged should be decided based on the patient’s clinical care requirements, available support network, patient and caregiver treatment preferences, and goals of care. Additionally, the regulation suggests that providers should take into account the quality and resource use metrics of providers to both assist patients and their families in their decision and to encourage them to become more active participants in the discharge planning and transition process. Changes in the Final Rule for Hospitals The 2015 proposed rule included a swath of detailed, prescriptive requirements that providers would have to follow when planning a patient’s discharge to post-acute care, including six standards to be added to the CoPs. However, CMS states that it received significant pushback from stakeholders on the proposed rule, specifically regarding the added regulatory burden that would be imposed on providers. In light of these comments, CMS heavily modified the final rule, and is instead finalizing much broader,
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less specific requirements. Ultimately, CMS states that hospitals must have an effective discharge planning process that focuses on the patient’s goals and treatment preferences. This includes expectations that the patients and their caregivers/support persons will be active participants in the discharge planning process. CMS also states that this process must ensure an effective transition from the hospital to a PAC setting, and work to reduce the factors leading to preventable hospital readmissions. 1. D ischarge Planning Design: CMS originally proposed to establish a new standard, “Design,” which would require hospital medical staff, nursing leadership and other relevant service providers to provide input into the development of the discharge planning process. The new proposed standard would have required each hospital’s process to be specified in writing and approved by the hospital’s governing body. However, in the final rule, CMS recognized stakeholder comments that their proposal was too process-oriented and prescriptive. As a result, CMS is not finalizing any of the requirements relating to the proposed “Design” standard. Instead, the final rule includes a requirement that the hospital assess its discharge planning process on a regular basis, but does not establish a specific time requirement for doing so. 2. Discharge Planning Applicability: CMS proposed to require that the discharge planning process apply to all inpatients, as well as specific categories of outpatients. In response to stakeholder concerns, however, CMS is scaling back the scope of this requirement. In the final rule, hospitals are required to identify “at an early stage of hospitalization” those patients who are most likely to suffer adverse consequences if discharged without adequate planning. Hospitals will be required to provide a discharge planning evaluation for those patients, as well as any other patients who request discharge planning. Patients’ representatives and attending physicians may also request discharge planning on behalf of their patient. This is a significant limitation in the amount of patients who will be required to have a discharge plan in place prior to the end of their hospital stay. 3. Discharge Planning Process: CMS proposed a set of 10 specific elements that would have to be addressed in the discharge planning process, including an extensive list of requirements for identifying patients’ post-discharge goals, preferences and needs. As with other sections of the proposed rule, CMS has significantly revised the proposed requirements to focus less on specific processes and prescriptive elements, and more on overall outcomes while allowing flexibility for hospitals. The final regulations require the following:
a. Any discharge planning evaluation must be made on a timely basis to ensure that appropriate arrangements for post-hospital care will be made before discharge. CMS did not finalize a proposed requirement that hospitals begin the discharge planning process within 24 hours of patient admission or registration.
b. All discharge planning evaluations must include a review of the patient’s likely need for post-hospital services, including, but not limited to, hospice care services, post-hospital extended services, home health services and non-health care services and community-based care providers. [Emphasis added.] The evaluation must also include a review of the availability of these services and the patient’s access to these services. The enhanced focus on community-based providers and non-health care services is a significant, positive addition to these requirements from a patient perspective.
c. All discharge planning evaluations must be noted in the patient’s medical record, and the results of the evaluation must be discussed directly with the patient or with their representative.
d. Any discharge planning evaluation must be developed by, or under the supervision of, a registered nurse, social worker or other qualified personnel. CMS did not finalize a proposed requirement that the practitioner responsible for the patient’s care be directly involved in the discharge planning evaluation.
e. A hospital’s discharge planning process must require regular re-evaluation of a patient’s condition in order to identify any changes that would require modification of their discharge plan. The plan must be updated as necessary to reflect these changes.
f. Hospitals must account for quality and resource use data on PAC providers during the discharge planning process, and must consider how this data can inform the discharge plan to address the patient’s goals of care and treatment preferences. Hospitals are required to use this quality data to assist patients and their families in selecting a PAC provider. This requirement is unchanged from the proposed rule, as it is required by law in the IMPACT Act.
4. Discharge to Home/Transfer to Another Facility: CMS originally proposed to redefine the requirements around “discharge to home” in the CoPs to include patients who are leaving the facility, either to their own home or to the community if they do not have a residence, and who require follow-up services from their primary care provider, home health agency, hospice service, or any other outpatient health care provider. CMS also proposed to detail the minimum set of information that hospitals must provide to patients or their receiving facility. In response to comments concerned about provider burden, CMS has removed the majority of their proposed discharge requirements, and is instead finalizing a single requirement around transmission of necessary information. Hospitals will now be required to discharge patients with “all necessary medical information pertaining to the patient’s current course of illness and treatment, postdischarge goals of care, and treatment preferences.” Hospitals must either provide the patient with this
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information if they are discharged to their home, or send it directly to the receiving PAC provider if they are transferring to another facility-based setting of care. 5. Requirements for PAC Services: CMS is finalizing the originally proposed requirements for PAC services without any changes. Hospitals will now be required to include a list of Medicare-participating PAC providers (including HHAs, SNFs, LTCHs and IRFs) that serve the surrounding area in patients’ discharge plans if they require post-acute care. Previous regulations excluded IRFs and LTCHs from this list, so this is a significant change that will expose patients to other PAC options, assuming they qualify for these levels of care. For patients who are enrolled in managed care organizations, hospitals must alert the patient of the need to verify whether these PAC providers participate in their network, and must share any information the hospital has about facilities’ network participation. Additionally, hospitals must document in the medical record that they have presented this list of options to the patient, and the patient must be informed of their freedom to choose among PAC providers. Finally, hospitals must disclose any financial interest they may have in referred HHAs or SNFs. Additional Requirements in the Final Rule The proposed rule also addressed discharge planning requirements for CAHs and HHAs. For CAHs, CMS is replicating the requirements outlined above. For HHAs, CMS originally proposed a slightly simplified process entailing the content and timing requirements for discharge or transfer summaries from HHAs. However, after consideration of stakeholder comments, CMS is not finalizing the proposed changes for HHAs, with the exception of the change outlined above that is required by the IMPACT Act. As with the requirements for discharge to home/transfer to another facility, CMS is not specifying the information that HHAs are required to send with patients at discharge, but will require the HHA to send “necessary medical information” pertaining to patient goals, treatment and preferences. HHAs will also be required to comply with any requests for additional clinical information from the patient’s receiving facility.
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Lastly, the final rule includes one provision originally proposed in 2016, which ensures a patient’s right to access his or her own medical information from a hospital, in the form or format that the patient requests (as long as it is readily producible in that form). This is a transparency provision that allows patients to more easily obtain their medical records for future treatment purposes. However, this also may stimulate further medical malpractice scrutiny as patients have greater access to hospital records without hiring counsel or overcoming obstacles that hospitals often impose to discourage routine release of hospitals’ patient records. Analysis This final rule has been released years after the proposed rule was issued by the Obama administration. While many of the proposed rule’s provisions have not been adopted in the final rule due to stakeholder comments concerned about regulatory burdens, the final rule offers several improvements to the discharge planning process that should benefit patients in need of PAC services, particularly services provided in inpatient rehabilitation hospitals as well as long term acute care hospitals. The fact is that, for certain patients (i.e., patients who request or are identified as likely to need discharge planning), the discharge plan from the acute care hospital must include choices within each category of post-acute care, as well as resources for extended care services and even nonmedical services in the community setting. These new discharge planning procedures will likely improve transitions from acute to PAC services, decreasing readmissions to the acute care hospital and potentially improving access to traditional and non-traditional PAC services, especially for individuals with disabilities and chronic conditions. The requirement to produce hospital medical records upon request within a reasonable period of time is designed to increase transparency, but may very well lead to an increase in medical malpractice lawsuits against hospitals of all kinds.
PAC Market Analysis Reports Find out where your institution stands with a Market Analysis of Medicare Post-Acute Care (PAC) Referral Patterns, Episode Spending, Performance Measures and Impact of Medicare Bundled Payment Models
Using the most recent two years of Medicare claims data, Dobson DaVanzo & Associates delivers inpatient rehabilitation providers with a general market-level analysis on their facility’s episode spending and key performance metrics across all Medicare discharges. Benchmark your facility against state and national inpatient rehabilitation providers and find out where you stand. Dobson DaVanzo & Associates can also help you better understand how the Bundled Payment for Care Improvement (BPCI) initiative and the Comprehensive Care for Joint Replacement Payment Model (CJR) are impacting the markets.
Stay informed! Order your PAC report today. AMRPA Members Receive Reports at Discounted Rates. Visit www.amrpa.org/PAC-Market-Analysis-Reports for more information, or contact Julia Scott, AMRPA Member Services Coordinator, jscott@amrpa.org.
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Don’t Let Your Case Mix Index Take a Hit
Lisa Werner, MBA, MS, SLP Director of Consulting Services, Fleming-AOD, Inc.
On October 1, the new Case Mix Groups (CMGs) were implemented by the Centers for Medicare and Medicaid Services (CMS). These new CMGs are based on the sections GG and H items from the IRF-PAI. I hope that your implementation was seamless. Since the final rule was published and modifications were made in eRehabData®, we noticed that the new CMG payments were not as high, thus revealing that not all providers were trending toward a neutral or positive change in reimbursement. This could be based on either the mix of patients they admitted, or their means of obtaining IRFPAI scores for the functional abilities GG items. I wanted to take some time to point out the eRehabData® analytical tools that will help you continue to realize optimal reimbursement with the new CMGs. The first area that deserves your attention is the eRehabData® facility report. The case mix index number in the top table of the report now can reflect the payments weights of the new CMGs for patients discharged since October 1 and patients in the selected time period under the old CMGs. To compare the case-mix index (CMI) based on the old methodology to the CMI based on the new methodology for pre-FY2020 discharges, toggle between the “Pre-FY2020 CMGs” and “FY2020 CMGs” radio buttons. When the proposed rule came out, eRehabData® created a model of the changes so that our subscribers would have an idea of what was coming their way. The 2020 Proposed Grouper Model is still in place and it indicates what your anticipated Case Mix Index would be based on the patients admitted in the time period you designate. The Difference in Average Expected Reimbursement highlights whether you will receive more or less reimbursement on average. If you see a negative number, that is an indication that your data collection process will not result in the same average reimbursement under the new CMGs that you had in the past. While negative numbers are eye-opening, observing a positive reimbursement difference does not mean that you are in the clear or that no further action is required. All providers will need to alter the way they think about the timing and assignment of the section GG and H items in order to optimally capture reimbursement. The GG/H CMG items averages are now displayed by subscale to mirror how the CMG is calculated. Admission subscale averages, discharge subscale averages, and subscale change are present for all patients, for patients who have completed walk items, and for patients who have completed wheelchair items.
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Pay attention to the breakdown of scores and totals in self-care and mobility. Identify the items for which you are scoring higher on average than the nation or region. This will provide an idea of where your approach to scoring may need to be modified. Next, look at the Functional Scoring Comparison Graph that shows facility scores compared to weighted national or regional scores. The graph depicts your difference in admission scores, discharge scores and the change from admission to discharge scores. The Functional Independence Measure™ (FIM™) averages are still displayed in the facility reports. Note that as time goes on, the number of providers capturing this information at admission and discharge will be reduced. However, you may need the data for performance improvement reporting for some time, so we will continue to report the averages in the traditional manner. This may change in the future or when it becomes clear that FIM data collection in eRehabData (which is now optional) has ceased completely, but we will always show the FIM measures for time periods during which CMG assignment depended on FIM scores. We continue to struggle with the definitions CMS published and the guidance offered in the CMS questions and answers. Per CMS, we have three days to obtain a score for each of the section GG items. Further, CMS indicated that the scores that we report on the IRF-PAI should reflect the patient’s burden of care prior to
benefiting from therapeutic intervention. While maintaining patient safety, we should be assessing the patient’s ability to complete the activity based on their prior level of function. To me, this means that we should be recording the score for each section GG item during the first assessment of those items. For eating, that would mean the first meals until compensatory techniques are provided. For transfers, that would mean the initial transfers before a device or technique is implemented. If strategies or adaptive devices are offered in that episode, then therapeutic intervention has been offered. Subsequent meals or transfers would be completed differently and the scores would not be eligible for use on the IRFPAI according to the guidance provided by CMS. If the breakdown of your section GG scores indicates higher numbers than the nation and region, determine whether you are capturing scores in accordance with the intent laid out by CMS. Make sure to keep a close eye on your case-mix index. Ensure that your processes, documentation and staff knowledge are up to par. If your CMG capture now is lower in acuity than what it was before October 1, review your documentation to ensure that your data collection is capturing burden adequately, identify knowledge gaps, and provide education to the therapists and nurses on conducting assessments free of therapeutic intervention. Rely on the eRehabData® analytical tools to highlight opportunities for improvement.
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EDUCATION , COMMUNICATION, PARTICIPATION & OPERATIONAL ASSISTANCE AMRPA: Working Together to To Preserve Preserve Access To Medical Rehabilitation AMRPA: Working Together Access to Medical Rehabilitation Maggie Ramirez · VP of Membership Services · 347-573-3732 · mramirez@amrpa.org
Elizabeth Katsion, AMRPA Member Services Associate, ekatsion@amrpa.org, 202-207-1102.
AMRPA Magazine / November 2019 15
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Did You Know?
All of our webinars are available online!
Missed out on a recent AMRPA webinar? Not to fear! All AMRPA webinars are available On Demand for purchase almost immediately following its recording.
W Eour B selection I N A here: R Browse https://amrpa.org/Education/Webinars/OnDemand-Webinars *AMRPA members receive a discount on all webinar recordings.
18 AMRPA Magazine / November 2019
Analyzing Recent Medicare Executive Orders: Will Future Mandated Rulemaking Address or Exacerbate IRF Access Issues in the Medicare Advantage Program?
Kate A. Beller, JD, AMRPA Executive Vice President for Policy Development and Government Relations
The American Medical Rehabilitation Providers Association (AMRPA) 2019 Fall Educational Conference and Expo provided an excellent opportunity to learn more about the realworld and practical impact of current Medicare policies. A topic that was consistently raised across sessions involved patient access and coverage issues in the Medicare Advantage (MA) program, and the types of policy changes that could improve patient access to inpatient rehabilitation facility hospital and unit (IRH/U) – and ultimately, patient outcomes. These discussions proved to be timely in light of a recent Executive Order (EO) that calls for new regulations and federal oversight of both fee-for-service (FFS) Medicare and MA programs. The timing and content of the policies called for under the EO could have a significant impact on the inpatient rehabilitation industry. As background, President Donald J. Trump signed Executive Order (EO) No. 13,890 on October 3, 2019, Protecting and Improving Medicare for Our Nation's Seniors. Several sections of the EO are more political in nature, such as its criticism of “Medicare for All” proposals advanced by several Democratic presidential candidates. Other sections of the EO, however, direct the Secretary of the U.S. Department of Health and Human Services (HHS) to undertake expeditious notice-and-comment rulemaking and take other measures to directly implement potentially significant changes to Medicare programs in the relatively near future. The topics covered by the EO are wide-ranging, but could generally be described as seeking to provide MA plans with greater flexibility with respect to benefits and plan design, and also to carry over some aspects of MA plans and their marketplace to traditional fee-for-service (FFS) Medicare. Other key provisions address streamlined approval for “innovative products,” direct contracting, and continued efforts to reduce burdens for providers. AMRPA is closely watching the implementation of provisions that are more directly focused on the MA program. We will assess whether the future rulemaking and reports required under the EO address or exacerbate current issues affecting MA beneficiary access to IRFs. For example, one of the provisions in the first section of the EO directs the HHS Secretary to issue rulemaking within one year of enactment that would create a payment model allowing beneficiaries to share directly in savings achieved through that payment model. While such a model has the potential to engage and educate beneficiaries about the costs of their care, AMRPA will carefully assess whether the
AMRPA Magazine / November 2019 19
approach taken through rulemaking could result in cost-driven (rather than treatment-driven) post-acute care placement decisions. As AMRPA policy positions have consistently held, all types of “shared savings” arrangements in the Medicare must have sufficient quality measures and other safeguards to ensure care-stinting does not occur. AMRPA will continue to educate and engage with policymakers on this point following the release of the mandated rulemaking. Relatedly, in the second section of the EO, HHS and White House staff are required to submit reports within 180 days that recommend approaches to incorporate “true market-based pricing” into the FFS program that would “lower cost and improve quality,” using Medicare Advantage as a model. AMRPA has strongly opposed several of the coverage and payment tools used in the MA program, such as prior authorization policies and the use of proprietary guidelines. Our members repeatedly noted during the recent Fall Conference that these policies unfairly deny MA beneficiaries the same benefits that they would be entitled to under the FFS program and result in life-threatening care delays or denials. In fact, AMRPA members indicated that they would like to see several protections in the FFS program carried into the MA program, while this EO could actually produce an opposite result. AMRPA will continue to advocate to HHS and the Administration that these current MA policies can delay or deny needed IRH/U services, impede recovery and result in avoidable adverse outcomes (such as rehospitalizations) – outcomes that conflict with the EO’s intended goal of improving quality for beneficiaries. While some of the provisions in the EO pose potential regulatory threats, AMRPA has also identified several provisions that may provide an opportunity to engage with HHS and advocate for certain policies, such as those involving provider burden reduction and data transparency. As noted above, the EO requires the HHS Secretary to issue rulemaking within one year of the EO that eliminates “burdensome regulatory billing requirements.” AMRPA has already used several rulemaking opportunities – most recently the August 2019 comment letter responding to HHS’ Patients Over Paperwork initiative – to flag numerous reforms specific to IRH/U compliance and coverage criteria. The pending rulemaking therefore provides AMRPA with a new opportunity to push for reforms to some of the outdated and clinically unnecessary coverage requirements currently imposed on IRFs. Other issues embedded in the EO that AMRPA will be analyzing include, but are not limited to: If and how a provision directing HHS to promote “site neutrality” in Medicare payments could affect the post-acute care landscape, particularly patient access to IRH/Us (it’s worthwhile to note, however, that the EO’s provision did not discuss site neutrality specifically in the PAC context, nor did it provide a timeline/mandate for HHS action). How the provision calling for the removal of “unnecessary barriers” to private contracting impacts beneficiary costs and access, both within and outside of IRH/Us.
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Whether rulemaking that will provide beneficiaries with improved quality and cost data “to make decisions about their healthcare” will require beneficiaries to be given the type of data that allows meaningful comparisons across providers and PAC settings. Whether the provision to adjust network adequacy requirements for MA plans would compromise access to a full range of rehabilitation services. A full list of the rulemakings and reports required under this EO are included below for reference. AMRPA will closely watch HHS’ work to implement the various EO mandates and continue to advocate for meaningful patient access to IRH/Us in both the FFS and MA programs.
Comprehensive List of Rulemakings and Reports Required Under Executive Order 13890, Protecting and Improving Medicare for Our Nation's Seniors Reports or Actions Required within 180 Days (rulemaking not noted): 1. The Secretary and Presidential staff must submit reports within 180 days [April 2020] that identify approaches to modify FFS payment levels to more closely reflect rates paid by MA plans and commercial insurers in order to encourage more price competition and inject market pricing into Medicare FFS payment levels. 2. The Secretary and Presidential staff must submit reports within 180 days that recommend approaches to transition to “true market-based pricing” in the FFS Medicare program, including considering including the following in the FFS program: a. Shared savings programs; b. Competitive bidding programs; and c. Other novel approaches that may enable markets to lower cost and improve quality for FFS beneficiaries. 3. Coordinate with the Commissioner of Social Security to revise current rules to preserve retirement benefits for seniors who choose not to enroll in Medicare Part A, and propose other improvements to the Medicare enrollment process. Reports or Actions Required within One Year [October 2020] (rulemaking not noted): 1. The EO directs the Secretary use Medicare claims data to give providers additional insight into practice patterns that may pose risk to patients as well as any patterns that are outliers or outside of recommended standards of care. 2. The EO directs the Secretary to identify and remove unnecessary barriers to private contracts that would allow Medicare beneficiaries to contract for their own care.
Formal Rulemaking within One Year [October 2020]: 1. The EO directs the Secretary to issue notice-and comment rulemaking that would encourage MA plans to include innovative supplemental benefits and telehealth services. 2. The EO directs the Secretary to issue notice-and comment rulemaking that would reduce barriers to beneficiaries obtaining Medicare Medical Savings Accounts. 3. The EO directs the Secretary to issue notice-and comment rulemaking that would create a payment model that would allow beneficiaries to share directly in savings achieved through the payment model. 4. The EO directs the Secretary to issue notice-and comment rulemaking that would ensure that FFS service Medicare is not advantaged or promoted over MA plans. 5. The EO directs the Secretary to issue notice-and comment rulemaking that would adjust network adequacy requirements for MA plans to account for: a. The competitiveness of the health care market in the State(s) where the MA plan operates, including considering whether those markets have certificate of need or other potentially anti-competitive restrictions; and b. The availability of telehealth or other innovative services that are available for beneficiaries. 6. The EO directs the Secretary to issue notice-and comment rulemaking that would eliminate burdensome billing requirements, conditions of participation, supervision requirements, and benefit definitions and licensure requirements that are more stringent than applicable Federal or State laws. 7. The EO directs the Secretary to issue notice-and comment rulemaking that would ensure appropriate reimbursement by Medicare for time spent with patients by both primary and specialty care health providers. 8. The EO directs the Secretary to issue notice-and comment rulemaking that would ensure that all items and services provided by clinicians are reimbursed in accordance with service or item provided rather than the providing clinician’s occupation. 9. The EO directs the Secretary to issue notice-and comment rulemaking that would implement other changes to reduce burden on providers and eliminate regulations that create inefficiencies or otherwise undermine patient outcomes.
10. The EO directs the Secretary to issue notice-and comment rulemaking that would streamline approval and coverage of innovative products to ensure they are brought to market faster and are appropriately reimbursed and available for Medicare beneficiaries. 11. The EO directs the Secretary to issue notice-and comment rulemaking that would adopt regulations that would minimize or eliminate the time between approval of items and devices by the Food and Drug Administration (FDA) and coverage decisions rendered by Medicare. 12. The EO directs the Secretary to issue notice-and comment rulemaking that would clarify the application of Medicare coverage standards such as the reasonable-and-necessary standard for innovative devices and services. 13. The EO directs the Secretary to issue notice-and comment rulemaking that would identify and propose changes to improve the parallel FDA and Medicare review process for innovative devices and services. 14. The EO directs the Secretary to issue notice-and comment rulemaking that would modify the Value-Based Insurance Design (VBID) payment model to remove any disincentives for MA plans to cover innovated items and services that are not covered by FFS Medicare. 15. The EO directs the Secretary to issue notice-and comment rulemaking that would provide beneficiaries with improved quality and cost data that would allow them to make more informed decisions about plans and providers. 16. The EO directs the Secretary to issue notice-and comment rulemaking that would combat fraud, waste and abuse in the Medicare program, and propose further rulemaking regarding waste, fraud and abuse annually, within one year (Note: The EO also permits this to be done via sub-regulatory guidance). Actions with No Timeframe Given: 1. The EO directs the Secretary to undertake all appropriate efforts to detect fraud, waste and abuse, including use of innovative technology such as artificial intelligence. 2. The EO directs the Secretary to ensure that Medicare payments and policies encourage treatment at a diversity of sites of care through site neutral payment policies.
AMRPA Magazine / November 2019 21
2019
Fall Educational Conference & Expo
Loews Coronado Bay Resort • San Diego, CA | October 14-16, 2019
THANK YOU Our sincere thanks to everyone who made the 2019 AMRPA Fall Educational Conference & Expo a great success. Here are just a few photos to pique your curiosity about this outstanding education and networking experience. A full article summarizing the conference will be published in the December issue of AMRPA Magazine.
Social Determinants of Health Panel Discussion, moderated by Chris MacDonnell, FACRM, (left), with panelists Michael Marinko, MD, (middle) and Emily Rosario, PhD (right).
Visit: AMRPA.org/2019-Fall-Conference-Registration 22 AMRPA Magazine / November 2019
#AMRPA
Medical Rehabilitation Patient Perspective speaker Sergeant First Class U.S. Army Ranger Cory Remsburg, Ret. (left), and his father, Craig Remsburg (right).
Rich Kathrins, PhD, AMRPA Board Chairman, delivers the 2019 State of the Organization presentation.
Dr. Felice L. Loverso of Casa Colina Hospital receives Edward A. Eckenhoff Memorial Award.
Engaged listeners during the 2019 State of the Organization presentation.
Carolyn Zollar, JD, receives recognition for over 20 years of service to AMRPA.
Attendees network during the interactive poster presentation session.
AMRPA Magazine / November 2019 23
GAO: CMS Needs to Enhance Assessment of Its Quality Measures and Related Spending
The Government Accountability Office (GAO) recently issued a report that evaluated the Centers for Medicare and Medicaid Services’ (CMS) quality measurement activities and associated spending over the last decade. The Bipartisan Budget Act of 2018 required CMS to report annually on a comprehensive plan for its quality measurement activities, as well as on the funding for these activities. The Act also contained a provision for the GAO to review CMS’ quality measurement activities, which culminated in this report.
Mimi Zhang, AMRPA Director of Payment Innovation, Quality and Research
Highlights:
»»
»» »»
The report, CMS Could More Effectively Ensure Its Quality Measurement Activities Promote Its Objectives, found that CMS does not adequately track or identify how its quality measures, which are implemented across various quality reporting programs, support the agency’s strategic objectives for quality measurement. The GAO also found that CMS has carried large amounts of unused and available funding for quality measurement activities from year to year between federal fiscal years 2010 through 2018 (see figure below).
AO evaluated the spending and G strategic alignment of CMS quality measurement activities over the past decade GAO finds that CMS carries “significant” amounts of unused quality-related funding from year to year CMS also lacks processes and indicators to assess whether Medicare quality measures meaningfully contribute to its broader quality strategic objectives
Background Since the early 2000s, CMS has implemented a number of quality reporting programs in Medicare. These programs are generally focused on different settings of care, e.g., acute-care hospitals, physician offices, post-acute care providers, etc. At any given point in time, there are quality measures CMS is currently using and, concurrently, measures CMS is developing for potential future implementation to address the agency’s quality measurement goals. In post-acute care, for example, the Improving Medicare Post-
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Acute Care Transformation (IMPACT) Act of 2014 outlined a specific framework for quality measures, resource use measures and standardized patient assessment data. CMS has undertaken significant development work to meet the Act’s mandates since the Act. And as readers are well-aware, CMS has, and continues to, implement the IMPACT measures and data collection requirements across the PAC quality reporting programs. CMS observes a set of guidelines for developing new quality measures, and these guidelines are reflected in the Blueprint for the CMS Measures Management System. Additionally, CMS has established strategic objectives for the measures employed across the Medicare programs. These objectives have evolved over the last decade as the health care quality landscape itself has transformed. Most recently, in 2017, the strategic objectives were updated to align with CMS’ Meaningful Measures Initiative, which seeks to identify high-priority areas for quality measurement and improvement to enhance patient outcomes while also reducing provider reporting burden. At this time, CMS’ eight quality
measurement strategic objectives aim to adopt measures that: Are patient-centered and meaningful to patients, clinicians and providers; Address high-impact measure areas that safeguard public health; Are outcomes-based where possible; Fulfill each program’s statutory requirements; Minimize burden for providers; Create significant opportunity for improvement; Address measure needs for population-based payment through alternative payment models; and Align across programs and/or with other payers. GAO Findings and Recommendations The GAO assessed CMS’ quality measurement activities and evaluated how CMS makes decisions to develop and use quality measures in Medicare to promote its quality measurement strategic objectives. GAO also studied data on CMS appropriations and spending for fiscal years 2009 through 2018.
AMRPA Magazine / November 2019 25
Based on its analysis, the GAO issued several key findings and observations. CMS lacks complete information on its quality measurement funding and on how it uses funding to achieve its strategic objectives While CMS maintains data on budgetary outlays, the GAO found that the database does not adequately track quality measurement activities or how these activities support the agency’s overarching quality strategic objectives. GAO’s review also found that from year to year, CMS maintains a “substantial” amount of unused funds that are appropriated for certain quality improvement obligations, such as the IMPACT Act. According to the GAO, these unobligated balances exceeded annual obligations (meaning CMS had more funds left over than it used in a given fiscal year, generally). Of interest to AMRPA members, the GAO highlighted data showing that the vast majority of appropriations for IMPACT Actrelated quality activities have remained unused from 2015 to 2018 (see Figure 1 and Table 6 below). CMS lacks assurance that the quality measures it decides to use or develop effective promote strategic objectives. The GAO observed that CMS takes different approaches in deciding the quality measures it develops and uses. These approaches can be stakeholder-informed (such as through notice-and-comment rulemaking), solicited from CMS measure developers/contractors, or guided by agency priorities and/or
26 AMRPA Magazine / November 2019
statutory requirements. The GAO also found that CMS lacks both (a) procedures for systematically assessing whether the measures it decides to adopt actually address its strategic objectives, and (b) performance indicators to determine the agency’s overall progress towards achieving its strategic objectives for quality measurement. Recommendations The GAO issued the following recommendations: 1) CMS should maintain more complete and detailed information on its funding and quality measurement activities; 2) CMS should establish procedures to systematically assess measures under consideration based on its strategic objectives, and 3) CMS should develop and use performance indicators to evaluate progress in achieve its objectives. HHS concurred with all three recommendations. In a response to the GAO, HHS replied that is reviewing its fiscal accountability processes for its quality improvement activities and is implementing more granular tracking of quality-related funding. HHS also stated that it would consider how best to evaluate and document its progress in meeting its quality measurement strategic objectives. The complete report, CMS Could More Effectively Ensure Its Quality Measurement Activities Promote Its Objectives, is available here.
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Select GAO and HHS OIG Reports on Nursing Homes and Assisted Living Facilities
In August, the Government Accountability Office (GAO) issued a report assessing the federal requirements on oversight in nursing homes and assisted living facilities. The Centers for Medicare and Medicaid Services (CMS) oversees and is responsible for safeguarding the health and welfare of beneficiaries living in nursing homes and assisted living facilities.
Mimi Zhang, AMRPA Director of Payment Innovation, Quality and Research
In recent years, the GAO has issued multiple reports reviewing CMS’ oversight of the health and welfare of residents in nursing homes and assisted living facilities. For example, selected GAO reports included a review of the incidence of abuse in nursing homes and a review of what is known about the incidence of abuse in assisted living facilities. Reports often included key recommendations. In addition to GAO’s audits of federal oversight of nursing homes and assisted living facilities, the Office of Inspector General within the Department of Health and Human Services (OIG) routinely audits a broad range of both CMS’ and states’ oversight activities related to long-term care facilities. Below are select GAO and HHS OIG reports from 2014 to August 2019 regarding the reporting and investigation of nursing homes and assisted living facilities.
Date
Title
Description
August 2019
Elder Abuse: Federal Requirements for Oversight in Nursing Homes and Assisted Living Facilities Differ (GAO-15-599)
GAO reviewed federal oversight of elder abuse reporting, investigation, and law enforcement notification in both nursing homes and assisted living facilities. In this report, GAO describes federal requirements for reporting, investigating, and notifying law enforcement about elder abuse in both types of facilities.
June 2019
Nursing Homes: Improved Oversight Needed to Better Protect Residents from Abuse (GAO-19-433)
GAO found that, while relatively rare, incidents of abuse as identified by state survey agencies more than doubled from 2013 to 2017, and that gaps in CMS oversight resulted in delays prioritizing investigations and notifying law enforcement about abuse. GAO made six recommendations including that CMS require state survey agencies to immediately notify law enforcement of any suspicion of a crime.
June 2019
OIG: Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated (A-01-16-00509)
The OIG issued several recommendations for CMS to ensure that incidents of potential abuse or neglect of SNF residents are identified and reported by working with the Survey Agencies. CMS concurred with the OIG’s recommendations.
AMRPA Magazine / November 2019 29
Date
Title
Description
April 2019
Management Report: CMS Needs to Address Gaps in Federal Oversight of Nursing Home Abuse Investigations That Persisted in Oregon for at Least 15 Years (GAO-19-313R)
GAO found that the Oregon survey agency was not following federal requirements that the survey agency investigate all abuse allegations in nursing homes. GAO made three recommendations including that CMS ensure all state survey agencies are meeting federal requirements for investigating alleged abuse.
April 2019
OIG: Trends in Deficiencies at Nursing Homes Show That Improvements Are Needed To Ensure the Health and Safety of Residents (A-09-18-02010)
The OIG issued recommendations and developed this data brief to help CMS identify areas for improvement in the nursing home survey and certification process and ensure that deficiencies recur less frequently.
September 2018
Nursing Home Quality: Continued Improvements Needed in CMS's Data and Oversight (GAO-18-694T)
In October 2015, GAO issued a report on CMS oversight of nursing home quality. This 2018 report describes trends in nursing home quality through 2014, changes CMS had made to its oversight activities as of October 2015, and the status of CMS actions on the 2015 recommendations.
January 2018
Medicaid Assisted Living Services: Improved Federal Oversight of Beneficiary Health and Welfare is Needed (GAO-18-179)
GAO found oversight of state monitoring of assisted living services by CMS was limited by gaps in state reporting. GAO made three recommendations including that CMS clarify state requirements for reporting program deficiencies and require states to annually report critical incidents.
September 2017
HHS OIG Data Brief – A Few States Fell Short In Timely Investigation of the Most Serious Nursing Home Complaints: 2011 -2015 (OEI-01-16-00330)
HHS-OIG identified the extent to which state survey agencies met onsite investigation timeframes for the most serious complaints. Key findings included: (1) states received one-third more reports of complaints in 2015 than in 2011 and (2) almost all states conducted onsite investigations within required timeframes. No specific recommendations were made.
August 2017
Medicaid Managed Care: CMS Should Improve Oversight of Access and Quality in States’ Long-Term Services and Supports Programs (GAO-17-632)
GAO found that states varied in how they monitored concerns about LTSS quality and access, CMS did not always require states to report the information needed to monitor access and quality. GAO made one recommendation for CMS to improvement its oversight and management of LTSS programs.
August 2017
OIG: Early Alert – The Centers for Medicare and Medicaid Services Has Inadequate Procedures to Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements (A-01-17-00504)
HHS-OIG conducted a series of audits and investigations of nursing homes’ performance in detecting and reporting elder abuse and whether incidents were reported and investigated in accordance with state and federal requirements. HHS-OIG found that a significant percentage of these incidents may not have been reported to law enforcement and that CMS has inadequate procedures to ensure that incidents of potential abuse or neglect of Medicare beneficiaries residing in nursing homes are identified and reported. HHS-OIG made a number of recommendations to CMS to provide training and clarify guidance for state survey agencies and nursing homes and track referrals to law enforcement.
November 2016
Nursing Homes: Consumers Could Benefit from Improvements to the Nursing Home Compare Website and Five-Star Quality Rating System (GAO-17-61)
GAO issued four recommendation to CMS: establish a process to evaluate and prioritize website improvements, add information to the Five-Star System that allows homes to be compared nationally, and evaluate the feasibility of adding consumer satisfaction data. In its response, HHS agreed with three recommendations but did not agree with adding national comparison information.
October 2015
Nursing Home Quality: CMS Should Continue to Improve Data and Oversight (GAO-16-33)
GAO reviewed trends in nursing home quality, data on complaints and health and welfare deficiencies, and changes in CMS nursing home oversight. GAO found that trends in nursing home quality show mixed results. GAO made three recommendations including that CMS implement a clear plan for ongoing auditing of self-reported data and establish a process for monitoring oversight modifications to better assess their effects.
August 2014
Nursing Facilities’ Compliance with Federal Regulations for Reporting Allegations of Abuse or Neglect (OEI-07-13-00010)
HHS-OIG examined the extent to which nursing homes reported allegations of abuse and neglect in 2012 and had policies in place for notifying law enforcement. Key findings included: (1) 85 percent of surveyed nursing homes reported at least one allegation of abuse or neglect in 2012 and (2) 76 percent of nursing homes had policies to address federal regulations for reporting and investigation of abuse or neglect. HHS-OIG made three recommendations regarding the reporting of abuse and CMS concurred with the recommendations.
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CMS Finalizes Burden Reduction Policies for Hospitals and Other Facility Providers On September 30, 2019, the Centers for Medicare and Medicaid Services (CMS) issued a final rule titled, Regulatory Provisions to Promote Program Efficiency, Transparency and Burden Reduction; Fire Safety Requirements for Certain Dialysis Facilities; Hospital and Critical Access Hospital (CAH) Changes to Promote Innovation, Flexibility, and Improvement in Patient Care. This is a wide-ranging final rule that alters regulations for many different types of providers and facilities, including hospitals, home health agencies, Comprehensive Outpatient Rehabilitation Facilities (CORFs) and several others.
Jonathan M. Gold, JD, AMRPA Director of Government Relations & Regulatory Counsel
Highlights: »» »»
ealth systems can now integrate QAPI H and infection control programs Small changes made to emergency preparedness requirements
This rule finalizes provisions that were proposed in three separate proposed rules: Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction, published September 20, 2018 (CMS-3346-P); Hospital and Critical Access Hospital (CAH) Changes to Promote Innovation, Flexibility and Improvement in Patient Care, published June 16, 2016 (CMS-3295-P); and Fire Safety Requirements for Certain Dialysis Facilities, published November, 4, 2016 (CMS-3334-P). Most of the relevant changes finalized by this rule pertain to the Medicare Conditions of Participation (CoPs) and similar regulations for other sites of care. The final rule does not include provisions specific to inpatient rehabilitation hospital or units (IRH/U), but hospital CoPs are applicable to all hospitals, including IRH/Us. That being said, many of the CoP changes are only relevant to hospitals in multi-hospital systems that share a governing body, so for many hospitals this rule may have a minimal impact. The new updated regulations put in place by this final rule are effective on November 29, 2019. Integrated Hospital Quality Assessment and Performance Improvement Programs (QAPI) and Infection Control Programs for Multi-Hospital Systems Under current Medicare CoPs, hospitals are required to develop, implement and maintain an ongoing quality assessment and performance improvement (QAPI) program as well as an infection control program (ICP). Under these regulations, separately licensed hospitals in a multi-hospital system, even if under control of the same governing body, must maintain separate and distinct QAPI and ICPs. CMS is now finalizing an amendment to the regulations that will expressly permit a multi-hospital system that is under the control of a joint governing body to choose to have an integrated QAPI and ICP. These integrated programs may include all separately licensed hospitals that are under the control of one joint governing body. CMS has placed several conditions on the use of an integrated QAPI and ICP in the final rule. First, the integrated arrangement must continue to comply with all state laws, and must be established in a manner that takes into account each separate facility’s unique needs and challenges. CMS also says the facilities must take all steps necessary to ensure
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that unique issues pertaining to any one facility are adequately considered and addressed within the integrated QAPI and ICP. CMS estimates the change permitting integrated QAPI for multi-hospital systems will save these providers up to $31 million annually. For the ICP change, CMS estimates this will result in an annual net savings of approximately $115 million for multi-system hospitals. Modifications to Emergency Preparedness Planning, Training and Testing Requirements CMS proposed multiple changes to the current emergency preparedness and training requirements for hospitals and other facilities. CMS currently requires facilities to review and update its emergency preparedness plans at least yearly. In this final rule, CMS state it will now allow hospitals to review their plan no less than every two years. However, based on feedback from commenters, CMS is not finalizing that change for long-term care facilities (LTCFs), which will still be required to update plans at least once yearly. CMS says that all facilities will continue to update their plans more than required if necessary for staff or other changes that necessitate an updated plan. CMS estimates this change will result in savings of $69 million annually across all facility types. The next change CMS is making is to remove the requirement that hospitals maintain documentation of their efforts to contact local emergency officials for collaborating on their emergency preparedness plan. Instead, facilities only need to include processes for working with and contacting local officials in their plan, but will no longer need to keep documentation of outreach to these officials. It should be noted in the proposed rule CMS said that since most hospitals are accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), and the JCAHO is expected to continue to require this documentation for accreditation, CMS estimates only non-JCAHO accredited hospitals will be able to take advantage of this reform. Because of this, CMS estimates savings of only $7 million annually across all provider types. CMS is also loosening its requirement that facilities conduct emergency preparedness employee training annually, and instead will require that facilities conduct training every two years. CMS is again straying from the proposed rule and continuing to require LTCFs to conduct training at least once annually, rather than every two years. CMS is also adding a caveat to the loosened requirements which will require trainings be held whenever the emergency plan undergoes significant updates that would necessitate training for employees to become familiar with the updated plan. Similar to the documentation proposal, hospitals that are JCAHO-accredited will likely continue to be required to train more often than biannually. Therefore, CMS only anticipates savings for non-JCAHO hospitals, totaling approximately $2,015,031 annually. Finally, CMS proposes changes to the emergency preparedness testing requirements. Currently, all facilities must conduct two emergency preparedness testing exercises annually. One of these exercises must be a full scale, “boots on the ground” exercise, while another can be a smaller scale, “functional” exercise.
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// CMS is also loosening its requirement that facilities conduct emergency preparedness employee training annually, and instead will require that facilities conduct training every two years. CMS is again straying from the proposed rule and continuing to require LTCFs to conduct training at least once annually, rather than every two years.. For the functional test, CMS will now permit it to be satisfied by a workshop, which it describes as resembling a seminar but designed to further develop the emergency preparedness training plan. In addition, CMS is changing requirements for facilities that serve only outpatients. These outpatient-only facilities will now only be required to conduct one exercise yearly, with a full-scale exercise needing to occur every other year. CMS estimates savings of about $9.2 million dollars annually as a result of this change. Proposal to Modify Comprehensive Outpatient Rehabilitation Facility (CORF) Requirement to Conduct Quarterly Utilization Review CMS is loosening the requirement for Comprehensive Outpatient Rehabilitation Facilities (CORFs) that requires them to maintain utilization review plan and implement that plan at least quarterly. CORFs will now be permitted to implement its utilization review only once yearly. CMS estimates this change will result in total savings of $315,840 across all CORFs annually. Home Health Agency Changes CMS also finalized a number of changes relating to home health agency (HHA) requirements in this final rule. Current regulations require HHAs to provide both verbal and written notice of all patient rights and responsibilities, which include but are not limited to financial obligations, privacy rights, complaint rights, and transfer and discharge policies. CMS will now only require HHAs to provide verbal notice of the following:
All items and services furnished by (or under arrangements with) the agency for which payment may be made under Medicare; The coverage available for such items and services under Medicare, Medicaid and any other federal program of which the agency is reasonably aware; Any charges for items and services not covered under Medicare and any charges the individual may have to pay with respect to items and services furnished by (or under arrangements with) the agency; and Any changes to the charges or items and services set forth in the previous bullets. CMS says HHAs will need to continue to provide written notice of all rights and responsibilities, as is currently required.
In addition to other rights discussed, HHAs currently are required to provide patients with a copy of their medical record upon request within four days, or at the next home visit, whichever comes sooner. CMS originally proposed to remove the next visit requirement, and instead only require the HHA provide a copy of the record within four days, without regard to when the next visit occurs. However, due to commenters expressing concern about the burden of this proposal, CMS is not finalizing the change. Finally, CMS is altering a requirement regarding training of home health aides. Currently, if a nurse or other practitioner observes that an aide lacks certain skills, a complete competency evaluation must be performed with that aide. CMS will now only require that a training be conducted pertaining to the identified deficient skill(s), and that the aide complete a competency evaluation related only to those deficient skills(s). CMS estimates as a result of all HHA changes, providers will save approximately $94 million annually.
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AMRPA Submits Comments to CMS on the Physician Fee Schedule and Quality Payment Program Editor’s Note: On September 27, 2019, the American Medical Rehabilitation Providers Association (AMRPA) submitted comments to the Centers for Medicare and Medicaid Services (CMS) on the proposed rule for the Physician Fee Schedule and Quality Payment Program. The complete letter is provided below and is available at www.amrpa.org.
October 28, 2019 The Honorable Seema Verma Administrator The Centers for Medicare and Medicaid Services 7500 Security Boulevard Baltimore, MD 21244 Re: CMS-1715-P, Medicare Program; CY 2020 Revisions to Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment Policies; Updates to the Quality Payment Program; 84 Fed. Reg. 40,482 (August 14th, 2019). Dear Administrator Verma: On behalf of the American Medical Rehabilitation Providers Association (AMRPA), we write in response to the proposed rule for the Calendar Year (CY) 2020 Medicare Physician Fee Schedule (PFS) and Quality Payment Program (QPP) published in the Federal Register on August 14, 2019. AMRPA is the national trade association representing more than 625 freestanding inpatient rehabilitation hospitals and rehabilitation units of general hospitals, referred to by Medicare as inpatient rehabilitation facilities (IRFs). The vast majority of our members are Medicare participating providers and in 2017, IRFs served 340,000 Medicare beneficiaries with more than 380,000 IRF stays.1 AMRPA members also provide rehabilitation services across the continuum of care beyond the inpatient hospital, including hospital outpatient departments, physician offices, comprehensive outpatient rehabilitation facilities (CORFs) and therapy clinics. As part of this continuum of care, our members submit claims under Part B of the Medicare program for a variety of services, including physician visits, physical therapy, occupational therapy services, speech-language pathology and a number of other elements of care. IRFs treat patients with some of the most complex and serious conditions. Continued rehabilitation is an essential component of recovery from these types of conditions, and it is important that CMS keep the need for rehabilitation services for the more complex 1
edicare Payment Advisory Commission (MedPAC), “Chapter 10: Inpatient Rehabilitation Facility M Services,” Report to the Congress: Medicare Payment Policy, March 2019.
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and vulnerable patients in mind when modernizing the Medicare program. There are a number of proposals in this year’s proposed rule that would have notable effects on patients in need of continued rehabilitation services, and we offer comment on those proposals in the following sections of this letter.
I. AMRPA Opposes CMS’ Proposed Application of the Payment Reduction for Services Provided by Therapy Assistants, p. 59,654 The Bipartisan Budget Act of 2018 (referred to herein as “the statute”) requires CMS to reduce payment for any therapy services “furnished in whole or in part by a therapy assistant (as defined by the Secretary).”2 In order to determine when a service is furnished “in part” by a therapy assistant (TA), CMS proposes a de minimis threshold. CMS proposes that the de minimis threshold is reached when greater than 10 percent of the service is furnished by the TA. Under this standard, CMS also proposes that any time spent by the TA independent of the therapist or concurrently with the therapist will count towards the de minimis threshold. CMS proposes to apply this same standard to timed and untimed therapy services. AMRPA strongly disagrees with CMS’ proposed interpretation of when a therapy service is furnished “in part” by a TA on numerous grounds, including that the interpretation: Runs contrary to the plain language and intent of the statute; Is unnecessarily broad and will be burdensome in its implementation; Discounts the highly skilled services required of a therapist; and Could ultimately harm Medicare beneficiaries’ access to needed rehabilitation services. In all, AMRPA believes that CMS’ approach to interpreting the “in part” language is focused far too much on therapists’ timing/minutes, rather than on the training and skills needed by a therapist to deliver care – even if assisted by another member of the team. Even when a TA is assisting a therapist, the therapist’s expertise is often still guiding and ultimately furnishing the services. AMRPA believes that a TA is only furnishing the service when the TA is delivering care without any direct guidance from the therapist, and CMS policy must reflect this critical nuance in order to avoid inadvertent impacts on care delivery and access.
A. Time Spent Concurrently by the TA and the Therapist Should Not Count Towards the De Minimis Threshold The plain reading of the statutory language in question makes clear that CMS should not count time spent concurrently by both the therapist and TA towards the de minimis threshold. It is not reasonable to conclude that in instances when both the TA and the therapist
2
42 U.S.C. § 1395m(v)(1).
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are involved in the service, that it is actually the TA furnishing the service and not the therapist. Therefore, the plain reading of the statute clearly requires that only time spent independently by the TA – which is the only time it can be reasonably concluded the TA is furnishing the services – count towards the de minimis standard. In situations in which the therapist and TA provide services concurrently, the service is appropriately considered to be provided by only the therapist. Beyond just the plain reading of the statute, we believe that applying the payment adjustment only when the TA provided the services independently of the therapist aligns with the purpose of this statutory provision. The intent of this statutory provision was to more closely align payment with resource use. When a TA is substituted entirely for a therapist, resource use is lower since a lesser trained clinician is utilized to furnish the service. In the case of a TA performing a service entirely independently from a therapist, a payment reduction is the logical outgrowth of the diminished resource use. When both the therapist and TA furnish services concurrently, resource use is higher since two skilled clinicians are engaged in furnishing the services (rather than just one). Applying a payment reduction in this situation produces an illogical result that could not have been Congress’ intent. AMRPA finds it difficult to believe that Congress intended to apply a payment reduction to instances where resource use is lower – such as when a TA totally replaces a therapist – and when resource use is higher, such as when services are provided concurrently by both a TA and a therapist. On the contrary, AMRPA believes the “in part” language in the statute is appropriately interpreted as referring to when the TA independently furnishes a portion of the service in lieu of the therapist. Therefore, the payment reduction should only be applied when the total time spent by the TA independent of the therapist exceeds the de minimis standard. Stated another way, the payment reduction should not be applied when the total time spent by the therapist – whether concurrent with a TA or not – exceeds 90 percent. AMRPA would also like to point out that CMS makes no distinction regarding skilled versus unskilled activities when it comes to concurrent furnishing of services by both the TA and therapist. This also produces a backwards result. If a therapist needs a second pair of hands to furnish a service, the therapist could utilize an unskilled staff member (such as a clinic technician) to assist and therefore avoid a payment reduction. However, if the therapist utilizes the more skilled staff member – the TA – a payment reduction is applied. This again produces a nonsensical result and demonstrates why CMS’ interpretation of “in part” is inherently problematic. AMRPA urges CMS to instead employ a
the 45 minutes total that a therapist provided a timed service code, the provider would need to apply the modifier to all three units of the billed code – even though the therapist provided two units of the service without any involvement from a TA. From a logical and administrative viewpoint, the modifier should only apply to the unit of service involving the TA. Adopting this alternative approach would also avoid unnecessary and harmful reduction in payments for therapy services.
commonsense interpretation of the statute and apply the reduction when a TA provides a portion of the services independent of the therapist, and when those services are skilled services. CMS’ interpretation of “in part” would also disincentive use of TAs in critical contexts. To the extent they can independently furnish services, TAs allow therapists to treat more patients or more complex patients in a given timeframe. This is why it is appropriate for a payment reduction to be applied when TAs are utilized to independently provide services, and why it is financially feasible for therapists to receive this payment reduction when that occurs. However, if a therapist is also forced to take a pay cut when it utilizes the TA for concurrent services, the financial outcome of utilizing a TA is simply untenable. In practice, this policy would either force therapists to either use lesser skilled staff members to avoid payment reduction, or provide care to fewer patients. Neither of these options are in the best interest of Medicare beneficiaries, showing the unintended, adverse consequences of this interpretation.
AMRPA therefore urges CMS to permit providers to bill multiple units on different claim lines when the TA is only partially involved in the units being billed. Providers should be allowed to bill one line with the modifier for all units that the TA was involved in beyond a de minimis amount, and another line with that same service for any units the TA was not involved beyond a de minimis amount. There is no reason for CMS to prohibit the use of multiple claim lines in billing, which is entirely consistent with the relevant statutory language. In fact, CMS previously asserted its intention to use this exact approach, stating in the CY 2019 Physician Fee Schedule (PFS) final rule that:
In sum, AMRPA believes CMS’ interpretation of “in part” is contrary to both the plain language and spirit of the statute, and creates a perverse payment structure that strays from any logical connection to resource use. In addition, this interpretation may disincentivize the use of TAs and lower the clinical capacity of therapists. Therefore, CMS should not include concurrent services in the definition of services provided in part by a TA. B. CMS Should Permit Multiple Units of Timed Service Codes to be Billed on Separate Claim Lines In the proposed rule, CMS suggests providers will not be able to bill multiple units of the same timed service code on separate claim lines to avoid having the TA modifier applied across multiple units. Specifically, CMS states that providers:
“if a therapist assistant furnished one unit (15 minutes) and the therapist furnished 2 units (30 minutes) of the same procedure code that is defined to be billable in 15-minute increments, one unit of the procedure code would be billed on the claim line with the modifier for the therapist assistant’s services and two units of the procedure code would be billed on another claim line without the assistant modifier.”4
“need to look at the total minutes for all the billed units of the service, and compare it to the minutes of the service furnished by the PTA/OTA as described above in order to decide whether the 10 percent de minimis standard is exceeded. If the minutes of the service furnished by the PTA/OTA are more than 10 percent of the total minutes of the service, the therapist or therapy assistant would assign the appropriate CQ or CO modifier.”3 This overly broad application of the statutory requirement is arbitrary, places unnecessary burden on providers, and will lead to a very high number of claims being subject to the payment reduction. By way of illustration, if a TA was involved in only 15 minutes of
This CY 2019 PFS language shows that CMS itself determined that permitting providers to bill multiple units on different claim lines is the most rational approach to this billing issue. CMS now appears to be reversing itself and adopting a more burdensome policy, with no explanation to stakeholders. AMRPA opposes this policy reversal and urges CMS to finalize its policy as explained in the CY 2019 PFS rule and permit providers to utilize multiple claim lines for the same services. C. T he Modifier Should Not Be Applied (1) To Evaluation Services and (2) When Clinical Judgement by the Therapist is Required CMS proposes to apply the modifier to all services that the TA is involved in – both timed and untimed – and regardless of whether the service requires clinical judgement. However, this approach is flawed since under current Medicare rules, evaluation services cannot be performed by a TA.5 Further, the same rules prohibit TAs from making clinical judgements or decisions.6
4 Fed. Reg. 40482, 40562 (emphasis added). 8 83 Fed. Reg. 59452, 59659. 5 Medicare Benefit Policy Manual (MBPM) Chapter 13, § 230.1(C) – Practice of Physical Therapy (“PTAs may not provide evaluative or assessment services, make clinical judgments or decisions; develop, manage, or furnish skilled maintenance program services; or take responsibility for the service.”) 6 Id. 3 4
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While a TA may assist with evaluative services to a limited extent, the therapist is required to be involved directly with the evaluation and is ultimately responsible for synthesizing the observations made during the evaluation. This is a highly skilled service that a TA is prohibited from performing under Medicare rules. Therefore, a TA cannot be considered to have furnished this service, even partially. It follows that a TA’s involvement in an evaluative service is therefore per se either unskilled or de minimis, and should not trigger a payment reduction. Similarly, any service that requires clinical judgement cannot be considered to have been furnished by the TA, since Medicare rules also prohibit TAs from making clinical judgements. When clinical judgement is involved, any involvement by the TA would have been secondary, and therefore either per se unskilled or de minimis, relative to the role of the therapist’s skilled decision-making in providing that service. Therefore, if any unit of service that is being billed required clinical judgement, the modifier should not be required to be applied to that service. AMRPA therefore asks CMS to limit the application of the modifier to only services provided independently by the TA beyond the de minimis threshold and which did not require the clinical judgement of the therapist. Evaluations, which inherently require the clinical judgement of therapists, should be fully exempt from the modifier’s payment reduction. D. CMS Proposed Documentation Requirements Are Unnecessarily Burdensome The statutory requirement for a payment reduction and TA modifier will unavoidably produce added burden to therapists, as therapists will need to closely monitor TAs’ activities throughout the day to determine when the modifier is and is not needed. CMS’ documentation proposal, however, creates new burdens for providers without any accompanying policy rationale.
CMS proposes to add a requirement that the treatment notes contain a separate statement that explains the application or non-application of the modifier for each service furnished that day. This means that providers, who may bill four or more different services in a visit, will need to justify the use or non-use of the modifier multiple times for every single patient visit. These requirements will be extremely time consuming for therapists, and divert valuable resources away from patient care. Furthermore, this proposed requirement is unnecessary because therapists are already required to write treatment notes and progress reports, which could
include all of the necessary information needed for a contractor to determine the TA’s involvement in the services. A requirement for a separate statement for each and every unit of service is duplicative, and runs counter to the Administration’s goals of eliminating redundant administrative tasks for Medicare providers. In addition, there is no statutory requirement for separate and distinct documentation to justify use or non-use of the modifier. Finally, the proposal does not reflect the fact that many providers do not use TAs in their practices, and yet these providers would be required under the proposal to explain their non-inclusion of the TA modifier for each and every service they provide. Therefore, in the spirit of CMS’ Patients over Paperwork initiative, CMS should withdraw its proposed documentation requirement and allow the TA’s involvement to be noted in the treatment notes or progress reports already required by Medicare rules. This approach will provide maximum flexibility to providers to adapt to an already burdensome new policy and lessen any negative impacts. Overall, and as AMRPA detailed in response to last year’s proposed rulemaking, the Association remains very concerned about the impact of the proposed TA payment reduction on all Medicare patients, and particularly the complex patients treated in IRFs. IRFs treat patients with severe functional deficits that require ongoing treatment on an outpatient basis, often for extended periods of time. Due to these patients’ functional states, their outpatient services may often require a second staff member to assist in furnishing the services. An overly broad application of this payment reduction could therefore create serious care and access issues for these patients. AMRPA therefore urges CMS take as narrow view as possible when applying this modifier in the interest of one of Medicare’s most vulnerable patient populations. AMRPA would also like to remind CMS that there is a national shortage of therapists.7 Some projections indicate that the shortage could remain for decades to come.8 TAs have been, and will continue to be, vital in making up for the shortage of therapists to provide rehabilitation services. CMS should be especially mindful of this when implementing this policy, as any disincentive to utilize TAs could have long-term effects on therapy access. To conclude, AMRPA finds that CMS’ proposed policies run contrary to the plain reading of the statute and the spirit of the law, which aimed to align payments with efficiencies created by use of a TA. Instead, CMS’ proposal would actually diminish payments when
7
Model To Project The Supply And Demand Of Physical Therapists 2010-2025. American Physical Therapy Association (retrieved from http://www.apta. A org/WorkforceData/ModelDescriptionFigures/).
8
Id.
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resource use is higher – such as is the case when a TA provides services concurrently with a therapist – and would create significant financial burdens for providers. Other provisions would adversely impact the utilization of TAs and create payment challenges for therapists, such as the application of the modifier for skilled clinical judgment and the prohibition on billing multiple units of TA services on separate claim lines. Finally, AMRPA calls on CMS to withdraw its proposed documentation policy to avoid placing additional administrative burden on therapists.
CMS states that due to budget neutrality restraints, there will be a significant reduction in payments for many providers if this E/M payment adjustment is finalized, particularly for specialties that bill proceduralbased codes. While AMRPA is fully supportive of CMS’ plans to continue to pay physicians using different rates for different E/M visit levels, as well as to update the values of the corresponding payments, AMRPA is concerned about the potential harm to patients that could occur as a result of these budget neutrality adjustments.
II. AMRPA Recommends CMS Finalize its Proposed Changes Pertaining to Outpatient Evaluation and Management (E/M) Visits While Also Taking Further Steps to Minimize Payment Reductions for Other Providers, p. 40,670 CMS proposes to rescind its previously finalized policies and instead proposes to continue to recognize and pay for 4 levels of outpatient Evaluation and Management (E/M) visits for new patients and 5 levels of E/M visits for existing patients, all with distinct payment amounts. In addition, CMS proposes to adopt increased values for these outpatient E/M codes, as well as to change the criteria by which physicians choose which levels of visit to bill. CMS also proposes two new add-on codes that can be used by providers when billing outpatient E/M codes. AMRPA offers comments on several aspects of the proposal immediately below.
According to CMS estimates, physical and occupational therapists would see an 8 percent reduction in payments if this E/M proposal is finalized. AMRPA notes that this payment reduction has the potential to harm the very same patients CMS seeks to help via this E/M proposal. A multidisciplinary team approach to caring for patients is one of the hallmarks of care provided in an IRF, and that treatment approach often continues on the outpatient basis after a patient is discharged. It will be beneficial for these complex patients to continue to have access to physicians that are adequately compensated via these updated E/M visit levels. However, it will be detrimental to these same patients if they cannot receive the rehabilitation treatment recommended by these physicians due to a sharp decrease in Medicare reimbursement for these services.
A. AMRPA Recommends CMS Finalize its Proposal to Retain Separate Payment Amounts and Update Payment Values for E/M Visits but also Take Steps to Mitigate the Budget Neutrality Effects of this Proposal In response to the CY 2019 Physician Fee Schedule proposed rule, AMRPA urged CMS not to finalize its proposal to consolidate payment amounts for outpatient E/M visit levels. As we explained at the time, patients treated in IRFs often continue to need complex care services after discharge from an IRF, and this continuing care is essential for a full and meaningful recovery. AMRPA had serious concerns that the proposal to consolidate payment levels – which would lower payments for level 4 and 5 visits – would jeopardize access to care for patients with complex medical needs. AMRPA is encouraged to see that CMS no longer proposes to consolidate payment amounts for E/M visit levels.
AMRPA recognizes the challenges faced by CMS in responding to concerns with E/M payment levels while adhering to the budget neutrality requirements embedded in the PFS. To that end, AMRPA encourages CMS to take affirmative steps to avoid such a reduction in payments for providers that bill procedure services such as physical and occupational therapists. This should include working with Congress to explore updates to the PFS conversion factor to counter any budget neutrality effects of this proposal, as well as exploring CMS’ own authority to modify payments in other ways to account for this change in E/M payment levels.
In addition, AMRPA concurs with CMS’ proposal to update the values of E/M visit levels based upon recommendations from the American Medical Association RVS Update Committee (AMA). These updated values more closely correspond with the resources spent on furnishing E/M services to patients. These new values would also appropriately compensate physicians who treat complex patients that require extensive care coordination and monitoring.
Therefore, AMRPA supports CMS’ proposal to continue to pay separate visit levels for outpatient E/M visits, as well as to update the payment levels of these visits, so long as CMS also takes steps to mitigate any harmful effects this change might have on vital specialties such as physical and occupational therapy. B. A MRPA Supports CMS’ Proposal to Change How Physicians Choose Which Level of E/M Visit to Bill and Also Encourages CMS to Find Additional Ways to Alleviate Burden for Physicians Currently, physicians must determine which E/M visit level based on a combination of three factors (history of present illness (HPI), physical exam, and medical decision making (MDM)). CMS proposes to replace this
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framework and instead allow physicians to choose the level of visit based upon either MDM or based upon the total time spent during the day of the visit on that patient. In addition, physicians would need to document relevant information in the medical record in a manner sufficient to support the level of visit. AMRPA supports these proposed changes as an initial step. Replacing the more than 20-year old existing framework with these simplified options will more closely align Medicare policy with the modern practice of medicine. However, AMRPA would like CMS to be mindful that this change will result in only minimal burden reduction for physicians. Delivering high quality care mandates that physicians continue to include robust documentation for all patients, including elements of HPI, exam, and others. In addition, and as CMS notes in the proposed rule, providers must also continue to document for purposes of demonstrating medical necessity for Medicare claims. Therefore, physicians anticipate this change will result in only nominal changes when put into practice. AMRPA recommends CMS continue to explore ways to more meaningfully reduce administrative burden for physicians. In response to CMS’ most recent Request for Information (RFI) on reducing provider burden, AMRPA provided extensive comments on how to best modernize and refine the current regulatory framework, particularly for physicians practicing in IRFs who face unique and antiquated documentation requirements. AMRPA recommends CMS finalize these proposed changes, but also encourages CMS to continue to work with stakeholders like AMRPA to further modernize and refine Medicare rules to match the needs of present day medical practice. C. AMRPA Recommends CMS Finalize its Proposal to Add Two New Add-On Codes for Outpatient E/M Services CMS proposes two new add-on codes for outpatient E/M services. The first add-on code would be for each additional 15 minutes of E/M services provided on the day of the visit. The second add-on code would be for primary care physicians or physicians treating complex patients or conditions. This second code is meant to account for additional resources spent on providing primary care or care for complex patients, such as time spent coordinating care.
AMRPA supports both of these add-on codes. As previously discussed, patients discharged from IRFs often continue to be complex and time consuming patients, and ensuring adequate continuing care is crucial to a full recovery. Incorporating an add-on code for additional time ensures that there is not a disincentive to treat the most time-consuming patients, who may require time beyond a typical level 5 visit. The
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same is true for the primary care and complex patient add-on code. Therefore, AMRPA recommends CMS proceed with finalizing its proposals for these addon codes.
o summarize, AMRPA recommends the following T pertaining to CMS’ proposal for outpatient E/M services:
1. A MRPA recommends CMS finalize the updated values for separate E/M visit levels, while also taking affirmative steps to ensure that there are not deleterious budget neutrality effects to specialties such as physical and occupational therapy. 2. AMRPA encourages CMS to finalize its proposal to reform the guidelines used for physicians to determine which level of visit to bill, and also to work to find additional ways to alleviate physician burden. 3. AMRPA supports CMS’ proposal to create add-on codes for E/M services.
III. AMRPA Supports CMS’ Proposed Changes for Review and Verification of Medical Record Documentation, p. 40,547 CMS proposes that all clinicians billing Medicare will now only be required to review and verify (sign/date) any information entered into the medical record by any other physician, resident physician, student, or other members of the medical team. CMS would also define students to include students from all clinical disciplines. According to CMS, this means that physicians will not need to redocument information entered by a resident physician, nurse, or other team members. AMRPA supports this change as it reduces unnecessary redundancies in medical records and alleviates burden on clinicians. This change may also streamline training programs by allowing residents or students to gain experience with medical record documentation. We request that CMS issue guidance to further clarify this change. While CMS explained this proposed change in broad terms in the proposed rule, the agency should take further steps to explain precisely what information still does or does not need to be separately entered in the medical record by the billing clinician across the various types and settings of care. For example, CMS should clarify how this change does or does not change documentation requirements in IRFs, where a physician is required to conduct and document very specific services. This further guidance will ensure this change achieves its intended result and does not result in confusion or avoidable claim denials.
MRPA recommends CMS proceed with its proposed A changes to requirements for review and verification of the medical record, and also issue guidance on what is or is not required of billing clinicians based on their particular setting of care.
IV. A MRPA Supports Efforts by CMS to Encourage Delivery of Care Management Services Including Chronic Care and Transitional Care Management Services, p. 40,548 In this proposed rule, CMS undertook an analysis of a number of care management services, such as chronic care management and transitional care management services. CMS cited research that these codes may be underutilized, despite evidence that patients whose clinicians bill for these services see relatively positive clinical outcomes. CMS is proposing a number of changes that it hopes will spur greater use of these types of care management services by physicians, including creation of care management codes that would be available for management of just one chronic condition. AMRPA is largely supportive of these proposed changes but also encourages CMS to work with the AMA to reduce administrative burden and ensure these codes are adequately valued. A. AMRPA Recommends CMS Finalize its Proposed Changes to Transitional Care Management Services Transitional care management (TCM) services are services provided by a physician following a discharge to community subsequent to an inpatient admission. While allowing these codes to be billed by Medicare, CMS also includes a list of codes that cannot be billed by a physician during the same 30-day post-discharge period if the physician also billed a TCM code. CMS now proposes to remove these restrictions. AMRPA supports this proposed change.
As previously mentioned, patients treated in IRFs are recovering from serious functional impairments following a major injury or illness. The stay in an IRF is often just the first step in recovery, and patients will need ongoing, coordinated care after discharge from an IRF. The TCM service codes attempt to properly reimburse physicians who are coordinating the patient’s transition from inpatient to outpatient services. AMRPA agrees that this service should be billable by physicians even when billing other services in order to encourage coordination and oversight of plans of care. AMRPA also encourages CMS to work with the AMA to ensure these codes continue to be properly valued and carry proper descriptors, especially for physicians overseeing care for particularly complex patients. Therefore, AMRPA supports CMS proposed change to allow TCM services to be billed with other E/M and related services. B. M RPA Encourages CMS to Finalize its Proposed Changes to Chronic Care Management Services CMS is proposing to modify both the non-complex and complex Chronic Care Management (CCM) codes. For the non-complex CCM code, CMS asserts that the code may be undervalued since it assumes only 20 minutes of staff time, and providers may be providing much more than 20 minutes. Therefore, CMS proposes to replace the single code with two codes; one code
would be for the first 20 minutes of non-complex CCM, and an additional code would be an add-on code for each additional 20 minutes of services. These two codes would be “G codes,� and as proposed, billing of CPT code 99490 would be disallowed by Medicare, at least temporarily. For the complex CCM codes, CMS proposes to remove the requirement that there be either establishment or substantial revisions of a comprehensive care plan (CCP). CMS proposes to replace that language with the language found in the non-complex CCM code, which only requires establishment, implementation, revision or monitoring of the CCP. AMRPA favors these proposed changes and encourages CMS to finalize them. As with the TCM codes, it is important that providers are incentivized to coordinate care across disciplines and on an ongoing basis. Allowing for providers who spend more than 20 minutes on CCM services to continue to be compensated for their services is appropriate. In addition, removing barriers to billing CCM codes, such as requiring there be to a substantial revision to the CCP each time the code is billed, is a practical adjustment that will encourage utilization of these effective services. AMRPA does have concerns that replacing CPT codes with G-codes could cause some confusion for providers. Therefore, AMRPA suggests CMS continue to work with the AMA to avoid these types of temporary codes in the future, and seek to minimize administrative confusion or burden when future CPT codes replace these G-codes. AMRPA recommends CMS finalize its proposed changes to CCM service codes, but also work with the AMA to minimize provider burden or confusion with the use of and future transition from new G-codes. C. AMRPA Urges CMS to Finalize its Proposal to Create Principal Care Management Services Codes CMS is proposing the creation of new codes similar to CCM codes, but for patients with only one chronic condition, which it calls Principal Care Management (PCM) services. The first code CMS is proposing is a G-code for PCM that would require a single high-risk condition, at least 30 minutes of physician time, revision or development of a condition specific care plan, and either frequent medication adjustments or management of a condition that is unusually complex due to comorbidities. The second code would be the same, but for 30 minutes of clinical staff (non-physician) time.
AMRPA agrees with CMS that there is currently a gap in Medicare billing policy that does not permit physicians to bill for all types care management services. As CMS states, a physician that is providing services identical to CCM services, but for a patient with just one chronic
AMRPA Magazine / November 2019 41
condition, has no applicable care management code to bill. Therefore, AMRPA encourages CMS to create PCM codes to encourage utilization of care management services for patients that may only have one chronic condition. However, echoing our previous recommendation, AMRPA is concerned about the confusion created by using G-codes that may be eventually replaced with standard CPT codes. Because of this, AMRPA also recommends CMS collaborate with the AMA to ensure proper descriptors and valuations for these G-codes, and also to avoid confusion if these codes are eventually replaced with CPT codes. AMRPA supports the creation of this code, but again encourages close coordination with AMA to ensure the code is properly valued and described, and to minimize administrative confusion.
o summarize, AMRPA recommends the following T regarding CMS’ proposals to alter care management service codes: 1. AMRPA recommends CMS finalize its proposal to remove restrictions on billing Transition Care Management (TCM) codes. 2. AMRPA supports CMS’ proposal to replace Chronic Care Management (CCM) codes with codes that will allow physicians to bill additional time spent on CCM services. 3. AMRPA encourages CMS to finalize its proposal to create Principal Care Management (PCM) codes to allow physicians to be compensated for time spent coordinating care for patients with only one chronic condition. 4. In order to avoid creating confusing G-codes in the future, AMRPA recommends CMS continue to work closely with the AMA so that existing CPT codes can be modified in lieu of replacing CPT codes with Medicare-only G-codes.
V. A MRPA Encourages CMS to Develop a MIPS ValueBased Pathway (MVP) for IRF-based Clinicians, p. 40,731 In this proposed rule, CMS proposes broad revamp of the Merit-based Incentive Payment System (MIPS) through the creation of MIPS Value Pathways (MVPs). The creation of MVPs is intended to reduce confusion and redundancy in the MIPS reporting requirements and allow providers to participate in a pathway focused on their specialty. AMRPA agrees that CMS should undertake serious efforts to streamline MIPS, as certain components can be excessively burdensome and often only loosely tied to the delivery of quality medical care. AMRPA welcomes modernization of the existing reporting requirements, which could come either through MVPs or through reforms to the current MIPS framework. In addition, AMRPA encourages CMS to closely consider how best to incorporate IRF-based clinicians into the MIPS program, since these clinicians have been excluded from several
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facets of MIPS. For example, CMS does not include IRFbased clinicians in either its “hospital-based” definition, or its “facility-based” definition, despite the fact that these clinicians deliver care in a hospital just like acute-care hospital-based clinicians. It is important that physicians practicing in IRFs have a meaningful way to be recognized for their quality outcomes. IRF-based physicians spend time performing a unique mix of services, including screening patients for appropriate postacute care placement, coordination of an interdisciplinary team, face-to-face functional-based patient assessments, and many more services. The care delivered in an IRF can dramatically alter patients’ functional state and quality of life for years to come. There should be measures directly relevant to delivering care in this particular setting across all four categories of MIPS. AMRPA is eager to meet with CMS, along with other relevant stakeholders, to ensure that CMS moves forward in a constructive fashion with effectively incorporating IRF-based clinicians into future MIPS reforms. AMRPA stands ready to work with CMS to modernize MIPS and to continue to provide the highest quality care to IRF patients.
herefore, AMRPA suggests CMS continue to work T closely with stakeholders to determine the most efficient path for reforming MIPS, and also work to account for the unique nature of IRF-based practice when making these further changes.
VI. A MRPA Recommends CMS Update the Relative Value Units for Physical and Occupational Therapy Evaluation Services (CPT codes 97161, 97162, 97163, 97165, 97166, 97167) AMRPA recommends that CMS begin the process of reevaluating the values assigned to the evaluative services provided by physical and occupational therapists. Currently, CMS assigns the same value for all levels of occupational therapy (OT) and physical therapy (PT) evaluation services, regardless of complexity. This policy runs counter to the fact that high, moderate and low complexity PT and OT evaluation codes have distinct descriptors and typical time values. As a result, there is no additional reimbursement when a provider completes a high complexity evaluation that takes twice the time or more of a low complexity evaluation. The differences in clinical decision making and time between these levels of visit should be reflected in the Work Relative Value Units (RVUs) for these codes. However, CMS assigns a Work RVU of 1.20 for all three levels of OT and OT evaluation services. AMRPA strongly questions this approach, given the descriptors that differentiate these codes use several different factors. In addition, due to changes in Practice Expense (PE) and Malpractice Expense (MP) RVUs, CMS is proposing a slight increase in the low complexity OT evaluation, but not the moderate or high complexity OT evaluation. This again creates a backwards incentive for a provider to spend less time with a patient and be paid more.
Furthermore, this policy puts complex, vulnerable patients at risk of losing access to providers who perform complex evaluations. AMRPA therefore recommends that CMS work with the Relative Value Scale Update Committee (RUC) to begin the process of updating these code values. CMS and the RUC should take into account the skilled services and clinical expertise needed for a therapist to perform more complex patient evaluations. This increase in resource use should be properly accounted for in the Work RVU. In addition, the need for advanced supplies and tools to evaluate more complex patients should similarly be accounted for in the PE RVU. VII. AMRPA Disagrees with the Proposed Values of Cognitive Function Intervention (CPT Codes 971XX And 9XXX0), p. 40,601 AMRPA supports the creation of CPT codes 971XX and 9XXX0, which describe the first 15 minutes and every subsequent 15 minutes of therapeutic interventions that focus on cognitive function, respectively. However, AMRPA disagrees with CMS’ proposal to assign a Work RVU of 0.50 for 971XX (first 15 minutes) and a Work RVU of 0.48 for CPT code 9XXX0 (additional 15 minutes). Cognitive function intervention is a highly skilled service that is labor intensive and requires expertise of a trained therapist. Services provided beyond an initial 15 minutes are no less labor intensive and require skilled service equal to or greater than the initial 15 minutes of service. Therefore, CPT code 9XXX0 should not carry a value lower than 971XX. AMRPA urges CMS to work with the RUC to reevaluate these values to ensure there is not an incentive to provide lesser duration of services or to break services into multiple days.
VIII. Conclusion We appreciate CMS’ efforts to engage stakeholders as it continues to modernize the Physician Fee Schedule and the Quality Payment Program. AMRPA and our members remain committed to working with CMS to create a more patientcentered Medicare program. If you have any questions regarding our comments, please contact Jonathan Gold J.D., Director of Government Relations and Regulatory Counsel (jgold@amrpa.org /202-860-1004). Sincerely,
Richard Kathrins, Ph.D. Chair, AMRPA Board of Directors President and CEO Bacharach Institute for Rehabilitation
John Rockwood Chair, AMRPA Outpatient and Therapies Committee President, MedStar National Rehabilitation Network Senior Vice President, MedStar Health
Karl Sandin, M.D. M.P.H. Chair, AMRPA Physician Advisory Committee Medical Director, Immanuel Rehabilitation Institute
AMRPA Magazine / November 2019 43
MedPAC Proposes Three Measures to Align Cost Sharing and Benefits in a Unified PAC PPS
Remy Kerr, Policy and Research Manager
Proposed Measures:
I. Uniform limit on days covered II. Uniform copayment III. Uniform prior hospitalization requirement
On October 4, 2019, the Medicare Payment Advisory Commission (MedPAC) hosted the Aligning benefits and cost sharing under a unified payment system for post-acute care meeting session. The commission focused on three potential policies that could be aligned across the four post-acute care (PAC) settings under a unified PAC prospective payment system (PAC PPS), and provided feedback for each of the measures. The proposed policies included: 1) requiring a uniform hospital stay prior to admission to a PAC provider, 2) uniform day limit across settings, and 3) uniform copayment across settings. MedPAC viewed cost sharing and benefit alignment as the logical next step toward a unified PAC PPS. Background MedPAC staff reviewed the context for overall PAC reform, and emphasized that Medicare payments for PAC are high relative to the cost of care, and that payments can differ substantially among similar patients in the various PAC settings. MedPAC staff believe that the alignment of benefits and cost sharing could help to remove financial considerations from beneficiaries’ decisions on where to receive PAC services. Currently, benefits and cost sharing differ significantly between settings. Proposed Measures and Potential Impact MedPAC staff proposed three uniform changes as part of a unified PAC PPS, with options to either extend or eliminate the requirements across all settings. As part of the presentation, staff explained the potential impact to each PAC setting on preliminary modeling of the three proposed measures. I. Hospital Stay Requirements – Policy Options and Perceived Impact a. Uniform prior hospital stay requirement: • Would decrease coverage for a minority of inpatient rehabilitation facility (IRF) and long-term care hospital (LTCH) users and the majority of home health agency (HHA) users • Would modestly lower program spending b. Elimination of prior hospitalization requirement: • Would increase coverage for skilled nursing facility (SNF) users • Likely to substantially increase program spending II. Days Covered – Policy Options and Perceived Impact a. Uniform limit on days covered: • Would eliminate open-ended coverage for HHA • Would align current limits on days in institutional PAC
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b. Elimination of existing day limit coverage: • Retains open-ended coverage for HHA • Extends coverage for beneficiaries with long institutional PAC stays III. B eneficiary Cost-Sharing – Policy Options and Perceived Impact a. Uniform Per-Stay Copayments Required • HHA users would pay a higher share of total payment • Would reduce beneficiary financial considerations when choosing a PAC setting b. Different per-stay copayment between settings: • Would reflect relative differences in payments to providers • Encourages the use of less costly services Commissioner Discussion and Next Steps Following the staff presentation, commissioner feedback was requested regarding each of the three proposed measures. The commissioners generally supported the effort to align PAC, but expressed numerous concerns particularly as the measures applied to home health agencies (HHAs). The uniform prior hospitalization requirement drew significant discussion, with some commissioners voicing concern that access to HHAs would be negatively impacted, and overall hospitalization rates could significantly increase. Some commissioners, however, supported a uniform prior hospitalization measure, as they viewed it as a way to address utilization issues. The details of the prior hospitalization proposal were debated at length as well. Commissioner David Grabowksi stated that a three-day stay requirement should be reconsidered because in his view, three days was an arbitrary requirement. He further suggested that observation stays should be considered as part of a prior hospitalization requirement. Commissioner Pat Wang stated that IRFs and LTCHs should be exempt from any policy that requires a prior hospitalization stay, given that both facilities are already a hospital setting.
Commissioners were generally opposed to a uniform limit on days covered as it was presented by MedPAC staff. The commissioners did however express openness to potential other solutions such as a review and approval process at certain treatment milestones. Additionally, Commissioner Dana Gelb Safran suggested a uniform cap on dollar spending in place of a day limit. Commissioners also expressed an overall opposition to a uniformly set copayment amount due to the significant differences in the services offered (and therefore provider costs) across PAC settings. Many commissioners felt that HHAs should have a different level of cost sharing applied compared to institutional PAC, given that it is a lower-cost setting. Supplemental coverage was also a point of concern for many commissioners, given that supplemental coverage often shields beneficiaries from the true cost of their care. Commissioner Amol Navathe added that supplemental coverage should be considered when modeling the financial impact for beneficiaries. Ultimately, commissioners were typically in one of two camps related to copayment: 1) proportional copayments based on cost of care, or 2) two-tier copayment system with institutional PAC having a uniform copayment, and HHAs having a separate copayment. Over the coming months, MedPAC staff will incorporate commissioners’ feedback to better align cost sharing and benefits in post-acute care, as the commission moves forward with a unified PAC PPS. The staff anticipates providing an update on these issues in Spring 2020. Presentation slides and a transcript from this meeting are available at www.medpac.gov.
AMRPA Magazine / November 2019 45
House Committee on Small Business Holds Hearing Focused on Prior Authorization Implications
On September 11, 2019, the House Committee on Small Business held a hearing on utilization management tools, including prior authorization, and their particular impact on small health care practices. As Committee Chair Nydia Velazquez (D-NY) opened the hearing, she expressed concern that utilization management programs often force providers to shift time and resources toward insurance companies’ denials instead of patient care. She added that while utilization management programs were originally created as a cost-saving measure to reduce unnecessary care, prior authorization and step therapy often result in treatment delays for patients.
Remy Kerr, Policy and Research Manager
Physician witnesses representing a diverse set of specialties, including radiation oncology, anesthesiology, family medicine and dermatology, focused on how small medical practices are disproportionately affected by these policies. Often, small practices are limited in staff, time and resources available to complete complex prior authorization processes and appeal inappropriate denials.
Highlights: »»
Throughout the hearing, witnesses frequently pointed to survey data1 related to physician and staff burn out, increased administrative staffing needs, and issues surrounding peer reviews in the appeals process for Medicare Advantage. Additionally, witnesses and Chair Velazquez (D-NY) referenced the 2018 OIG Report,2 which concluded that Medicare Advantage plans may have financial incentive to deny prior authorizations. Each of the witnesses stated support for the findings of the report.
Testimony highlighting many of the challenges related to prior authorization, including: peer reviewers who are unfamiliar with the condition, increase in resource and staff demand, and lengthy appeal processes
»»
Office of Inspector General (OIG) 2018 report finding that Medicare Advantage plans may have financial incentives to deny prior authorizations
»»
Support for H.R. 3107, Improving Seniors’ Access to Care Act
46 AMRPA Magazine / November 2019
Treatment delays due to the prior authorization process were a major point of discussion for both witnesses and members. American Society for Radiation Oncology (ASTRO) Member Survey data1 presented by witness Dr. Paul Harari found that nine out of 10 radiation oncologists reported treatment delays as a result of prior authorizations. Dr. John Cullen representing The American Academy of Family Physicians (AAFP) added from personal experience that he has on average, three to four patients per day experience treatment delays because of utilization management programs. Rep. Brad Schneider (DIL) questioned the witnesses what an ideal process for prior authorization might look like. Witness Dr. David Walega, representing the American Society for Anesthesiologists (ASA) stated a shorter window between the proposed treatment and approval from the payer would reduce treatment delays for patients. 1
anders, T., & Arnone, A. (n.d.). Survey Says: ASTRO Member Survey Results. ASTRONews. Retrieved S from https://mydigitalpublication.com/publication/?i=462712&ver=html5&p=27#{"page":26,"iss ue_id":462712}
2
L evinson, D. R. (n.d.). Medicare Advantage Appeal Outcomes and Audit Findings Raise Concerns About Service and Payment Denials. Medicare Advantage Appeal Outcomes and Audit Findings Raise Concerns About Service and Payment Denials. U.S. Department of Health and Human Services Office of Inspector General . Retrieved from https://oig.hhs.gov/oei/reports/oei-09-16-00410.pdf
Additionally, treatment delays as a result of administrative burden were discussed by Members and witnesses. Rep. Dwight Evans (D-PA) asked the witness panel if they have been required to reduce their patient volume in order to meet the demands of completing utilization management processes. All witnesses stated they had reduced their daily patient volume as a direct result of administrative burden. Many witnesses had also had to hire additional staff to meet the demands of utilization management as well. Ranking Member Steve Chabot (R-OH) expressed significant concerns about administrative burden placed on providers, and the resulting decreased access to care for patients. Chabot suggested that more collaboration should be sought between the American Medical Association (AMA) and insurers to improve utilization management programs. In addition to treatment delays, witnesses expressed significant concerns about managed care plans’ peer review process. All four witnesses emphasized that the physician peer reviewers are rarely practicing in the same specialty, nor are they familiar with the condition and/or treatment protocol being reviewed. Witness Walega stressed that if a peer reviewer is unfamiliar with the condition or treatment protocol, it is inappropriate for the peer reviewer to make a determination about a patient’s care. Throughout the discussion, several physician witnesses and members encouraged legislative reform focused on prior authorizations. Rep. Jim Hagedorn (R-MN) specifically stated support for H.R. 3107, the Improving Seniors’ Access to Care Act. Additionally, Rep. John Joyce (R-PA) entered into the record a letter of support for H.R. 3107, which AMRPA had signed onto. The bill includes a number of provisions aimed at improving the transparency around prior authorization in Medicare Advantage, and addresses many of the issues and concerns voiced by the witness panel.
H.R. 3107: Improving Seniors’ Access to Care Act H.R. 3107 was introduced by Rep. Suzan K. DelBene (D-WA) on June 5, 2019, and has since received significant bipartisan support. More than 370 stakeholder organizations, including AMRPA, support the bill. The bill seeks to streamline Medicare Advantage (MA) prior authorization programs. Specifically the bill would: • Ensure evidence-based guidelines are being followed by MA plans in making treatment determinations • Require reporting from insurers on the use of prior authorization, and the number of associated denials and delays • Create a streamlined, electronic prior authorization process • Decrease prior authorization requirements for routine services • Streamline requirements for reviewers • Prohibit additional prior authorization requirements for additional medically necessary services that occur during a surgical procedure
As of October 18, 2019, H.R. 3107 has 94 bipartisan cosponsors and has been referred to the House Ways and Means Committee and the House Energy and Commerce Committee for consideration. A transcript of the witness testimony can be found at smallbusiness.house.gov.
AMRPA Magazine / November 2019 47
AMRPA Responds to Request for Information on Price Transparency Proposal Editor’s Note: On September 27, 2019, the American Medical Rehabilitation Providers Association (AMRPA) responded to a Request for Information (RFI) in the Outpatient Prospective Payment System (OPPS) proposed rule regarding price transparency requirements for hospitals. The complete letter is provided below and is available at www.amrpa.org.
September 27, 2019 The Honorable Seema Verma Administrator Centers for Medicare and Medicaid Services U.S. Department of Health and Human Services Attention: CMS-1694-P 7500 Security Boulevard Baltimore, MD 21244-1850 Delivered Electronically RE: Proposed Requirements for Hospitals To Make Public a List of Their Standard Charges & Request for Information (RFI): Quality Measurement Relating to Price Transparency for Improving Beneficiary Access to Provider and Supplier Charge Information [CMS-1717-P], 84 FR 39398 (August 9, 2019) Dear Administrator Verma: This letter is submitted on behalf of the American Medical Rehabilitation Providers Association (AMRPA) related to the Centers for Medicare and Medicaid Services’ (CMS) proposed price reporting requirements included in the Calendar Year 2020 Hospital Outpatient Prospective Payment System (PPS) and Ambulatory Surgical Center (ASC) Policy Changes and Payment Rates Proposed Rules. Our comments focus specifically on CMS’ proposal to require hospitals to: (1) post a list of all of their standard charges – both gross charges and all negotiated rates – for all items and services in a machinereadable format on their websites, and (2) post the negotiated rates for specific types/ numbers of “shoppable” services in a consumer-friendly way. As an overarching issue, AMRPA believes that the standard and shoppable price posting requirements, as proposed, would result in significant administrative and financial burdens across the entire hospital industry. At the same time, due to the nature of the pricing information that CMS proposes to be made public, consumers would see limited benefit from this data, and may in fact make inappropriate treatment decisions as they attempt to base care decisions off such complex information.
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Furthermore, in the event that CMS proceeds to finalize the policy in whole or in part, AMRPA respectfully requests that inpatient rehabilitation hospitals and units (referred to by CMS as inpatient rehabilitation facilities, or IRFs) be exempt from these proposals. AMRPA believes an exemption is appropriate due to: (1) the unique, patient-specific negotiation with payers that IRFs often engage in, (2) the fact that inpatient rehabilitation services – designed to treat some of the most medically complex patients in the Medicare program – contrast sharply with the other “shoppable” services (such as laboratory services) included in the proposed rule, and (3) given that IRFs are arguably the most regulated hospital entity in the Medicare program, these additional regulatory burdens pose a substantial threat to patient access to inpatient rehabilitation services. While AMRPA strongly supports the Administration’s longstanding interest in improving price transparency throughout the healthcare ecosystem, we believe that this proposal will not achieve its intended goal – improved consumer awareness and decision-making – and may unintentionally result in inappropriate or less clinically effective post-acute care placements. AMRPA is the national voluntary trade association representing more than 650 freestanding rehabilitation hospitals and rehabilitation units of general hospitals, outpatient rehabilitation service providers and several other types of rehabilitation providers. In 2017, IRFs served 340,000 Medicare beneficiaries with more than 380,000 IRF stays.1 On average, Medicare Part A payments represent approximately 60 percent of IRF revenues.2 AMRPA members help patients maximize their health, functional ability, independence, and participation in society so they are able to return to home, work, or an active retirement. Medicare beneficiaries admitted to IRFs for their immediate post-acute care have significantly better outcomes across a range of quality indicators compared to clinically matched beneficiaries who received their immediate post-acute care in another setting.3 The services provided by IRFs are based directly on patient need/ conditions, due in part to the extensive pre- and post-admission evaluations and documents that apply specifically to IRFs. The interdisciplinary nature of inpatient rehabilitation services distinguish IRFs from other sites of care, with CMS requiring physical therapists, occupational therapists, speech-language pathologists, rehabilitation nurses, rehabilitation physicians, and other clinician types to work in a highly coordinated manner in order for a patient with a serious debility to regain function and quality of life.4 These and other requirements help demonstrate why IRF services are significantly distinct from other types of “shoppable” services that patients can easily select in isolation and/or in advance, as outlined in more detail below. AMRPA, along with numerous other provider associations, urges CMS not to finalize this proposal. If adopted, the proposal would not only create new and often crippling burdens for the hospital
industry, but would also run in direct contrast to the goals of this Administration’ Patients over Paperwork initiative. In the first section of our comments, we detail our major concerns with this proposal across the sector, as well as highlight how these measures would result in exceptional burdens for IRF providers and their patients. The second section of our comments addresses our separate legal concerns that the proposal exceeds the agency’s regulatory authority and raises Administrative Procedure Act issues. In light of the potential policy and legal issues tied to these measures, AMRPA urges CMS withdraw this proposal and instead convene hospital stakeholders to identify best practices that more meaningfully educate patients -- without creating new burdens for their providers. We have provided below a summary of CMS’ proposals, which are followed by our substantive recommendations and comments. I. AMRPA Response & Recommendations to CMS’ OPPS Price Transparency Proposals A. Proposed Definition of Hospitals Subject to Price Transparency Requirements, p. 39,575 CMS proposes to define “hospital” for the purpose of its transparency proposal as “as an institution in any State in which State or applicable local law provides for the licensing of hospitals, (1) is licensed as a hospital pursuant to such law or (2) is approved, by the agency of such State or locality responsible for licensing hospitals, as meeting the standards established for such licensing.” CMS specifically proposes to require that IRFs that satisfy these two criteria to comply with the price posting/transparency requirements. CMS also notes that the agency considered whether it was appropriate to establish different requirements for hospitals located in a rural areas, or hospitals that are not federally owned or operated but that serve special populations (such as psychiatric hospitals), among others. CMS states, however, that because “such hospitals are open to the general public, and their charges are generally not made available to the public,” CMS believes there “is value in such hospitals making public their standard charges.” AMRPA urges CMS to employ a more tailored approach in determining which hospitals must comply with the standard/shoppable charges posting requirements. Unlike general acute care hospitals, IRFs furnish specific services tailored to the needs of patients with specific conditions (required under CMS’ 60% rule), such as traumatic brain injury (TBI) and stroke. Often, what specific services the patient needs (and consequent financial liability) will not be determined until after
1
edicare Payment Advisory Commission (MedPAC), “Chapter 10: Inpatient Rehabilitation Facility Services,” Report to the Congress: Medicare Payment M Policy, March 2019
2
Id.
3
obson Davanzo & Associations, Assessment of Patient Outcomes of Rehabilitative Care Provided in Inpatient Rehabilitation Facilities (IRFs) and After D Discharge (July 2014)
4
See Medicare Benefit Policy Manual § 110.2.5 - Interdisciplinary Team Approach to the Delivery of Care
AMRPA Magazine / November 2019 49
admission to the IRF, when the patient can be fully assessed. In fact, Medicare regulations require that IRFs complete a post-admission patient evaluation (PAPE) and develop an Individualized Plan of Care (IPOC) outlining the trajectory of services to be furnished to its patients, based on the extensive evaluations provided at and after admission.5 It will be difficult for a patient to know which services they will need prior to assessment by the IRF and the corresponding cost. Even then, the services needed will be a wide-ranging mix of rehabilitation and medical services provided by an interdisciplinary team, rather than a single or simple set of services that can be “shopped” in advance. As such, the services provided by IRFs are distinct from those provided in other hospital settings, and for this reason among others, AMRPA urges CMS to carve-out IRFs from the proposed definition of hospitals subject to the rule’s transparency requirements. B. P roposed Definition of the Standard Charges that Must be Posted by Hospitals, p. 35,977 CMS proposes to require hospitals to make public two types of standard charges: (1) gross charges; and (2) payer-specific negotiated rates. The rule defines a gross charge as the charge for an item or service reflected in a hospital’s chargemaster without any discounts. CMS explains that making gross charges publicly available is important because hospitals use these charges as the starting point for negotiating discounted rates with insurers. According to the Agency, higher gross charges are associated with higher negotiated rates and higher premiums and out-of-pocket costs for insured individuals.
Because more than 90 percent of consumers rely on a third party to cover their health care costs, CMS further proposes to require publication of negotiated rates. The rule explains that improving transparency for negotiated rates will enable consumers to compare the charges between hospitals and determine his or her out-of-pocket costs. CMS proposes to define payer-specific negotiated rates as the charges that the hospital has negotiated with third-party payers for an item or service. This would also include charges negotiated with Medicare Advantage (MA) plans. AMRPA strongly urges CMS to reconsider its proposal to require IRFs to publicly post their gross charges and payer-specific negotiated rates. With respect to gross charges, AMRPA notes that Medicare beneficiaries will only pay a deductible and possibly a set co-pay based on the number of days the beneficiary has been hospitalized for hospital (Part A) services for that benefit year. AMRPA is not aware of any situation in which a Medicare beneficiary would be required to pay a percentage of gross charges for Part A services, and therefore asserts that this “standard charge” information is not meaningful for Medicare beneficiaries. AMRPA also urges CMS to 5
42 C.F.R. 412.622
6
Staff/counsel is reviewing recent case law for a potential citation in this section
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consider that, in the context of inpatient rehabilitation, pricing information is affected by patient’s assessment (required before and after every IRF admission). This would make IRF-specific standard charges even more difficult for patients to understand and may actually convey inaccurate or misleading information6 about the cost of care when provided in advance of the assessment. Furthermore, with respect to payer-negotiated rates, it is critical for CMS to keep in mind that privately insured individuals have a wide range of different cost-sharing arrangements depending on their insurer and plan. Given the specialized treatment provided by IRFs and unique nature of costs associated with IRF services, IRFs often negotiate patient-specific rates with these third-party payers, including MA plans. Requiring IRFs to post patient-specific, payer-negotiated rates would be an incredibly burdensome task for IRFs from an administrative standpoint. CMS notes in the proposed rule that payer-specific rates will be helpful in light of the fact that “an increasing number of consumers are discovering that sometimes the providers’ cash discount can mean paying lower out-of-pocket costs than paying the out-of-pocket costs calculated after taking a third party payer’s higher negotiated rate into account.” Given that patients in IRFs receive an intensive mix of services from an interdisciplinary team, CMS’ rationale would be very unlikely to apply in the context of inpatient rehabilitation. Moreover, as CMS directly acknowledges in the proposed rule, the public display of payer-specific negotiated rates may have the effect of increasing hospital prices in concentrated markets due to anticompetitive behavior. These anticompetitive behaviors would particularly impact geographic markets where there are relatively few IRFs compared to other providers. AMRPA would also like to make CMS aware of a number of other unanticipated effects of the proposal. Through this policy, CMS will be incentivizing patients to pick their providers/sites of care based solely on price, rather than outcomes-based or quality-related measures. Given that the standard charges that IRFs would be required to post are likely to vary from the patient-specific, payer-negotiated rate that would ultimately impact patient liability, AMRPA has grave concerns that patient care decisions will be guided by misrepresentative/ inaccurate pricing information. Without other critical and complementary information, patients (receiving rehabilitation services in both the inpatient and outpatient setting) may ultimately make less informed decisions about their care by relying on limited and potentially misleading information. Therefore, in light of the significant burden that the proposal represents for IRFs, and the lack of any clear benefit to consumers (and
acquired, in contrast to a reasonable interpretation of “shoppable services.” As such, AMRPA urges CMS to exempt IRFs from its proposed shoppable servicesrelated posting requirement in light of the critical differences between the patient-tailored services provided in IRFs and other “shoppable” services listed by CMS in this proposal.
possible harm), we urge CMS to reconsider its proposal to require IRFs to post their standard charges, as defined by CMS. C. Proposed Requirements for Consumer-Friendly Display of the Payer-Specific Negotiated Charges for Shoppable Services, p. 39,585 CMS is proposing to require hospitals make public their payer-specific negotiated charges for at least 300 “shoppable” services in a “consumer-friendly” format. The 300 services would be comprised of 70 CMSselected shoppable services and 230 hospital-selected shoppable services. CMS defines a “shoppable service” as a “non-urgent” service that can be scheduled by a healthcare consumer in advance, allowing consumers to “price shop and schedule a service at a time that is convenient for them.” Specific examples provided by CMS include certain imaging and laboratory services and outpatient clinic visits, among others. With respect to the hospitals’ selection of shoppable services, CMS proposes that hospitals should select such services based on the utilization or billing rate of the services in the past year.
AMRPA generally supports CMS’ efforts to improve patients’ understanding of their healthcare costs and enable them to make more educated decisions on the price and convenience of their treatment when such services are truly “non-urgent” and can be “shopped” across providers. In stark contrast to the types of services CMS provides as examples of “shoppable” services, however, the services provided by IRFs are those specifically required to advance the recovery of some of the most medically complex patients, such as TBI patients. Furthermore, timely access to these services in IRFs is linked to demonstrable improvement in outcomes, whereas the time required for price comparisons for other “shoppable” services do not have the same recovery-related implications. The importance of IRF patients receiving both specific inpatient rehabilitation services and timely access to such services is evidenced by the American Heart Association and American Stroke Association’s guidelines for stroke recovery, which direct that stroke patients receive their immediate post-acute care in IRFs.7 AMRPA also urges CMS to take into account the fact that most IRF admissions come directly from an acute hospital where they were treated for serious illness/ injury, often arriving in an ambulance for services that are rarely scheduled in advance. IRF services are therefore a continuation of this form of “non-shoppable” initial treatment. For these patients, their medical and clinical circumstances and care trajectories afford little or no opportunity to plan or anticipate what level of services they may need or where those services should be 7
D. Noncompliance and Enforcement Mechanisms for Price Transparency Requirements, p. 39,591 In the case of noncompliance, CMS proposes to first issue a warning and, if the violation continues, it proposes to require hospitals to submit and follow a corrective action plan. If a hospital does not submit or adhere to the corrective action plan, CMS proposes to impose a civil monetary penalty (CMP) of up to $300 a day.
AMRPA urges CMS to limit the use of CMPs in the context of policy and ensure both inpatient and outpatient providers have sufficient education and training required for compliance with this proposal. Based on many of the points raised earlier in this comment letter, AMRPA believes the burden of any enforcement mechanism would far outweigh the benefits to consumers. As part of its Patients over Paperwork initiative, CMS states that it aims to “mov[e] the needle and remov[e] regulatory obstacles that get in the way of providers spending time with patients.” AMRPA believes imposing any such penalties on hospitals for price transparency requirements would accomplish just the opposite of that goal by straining hospitals’ resources in order to furnish information that is minimally beneficial to consumers. In addition, given that IRFs would face special burdens in posting patient-specific payer-negotiated rates, the proposal would create serious administrative and financial burdens for IRFs if they run into logistical challenges in posting the required information. E. CMS Burden Estimates With respect to its proposed price transparency measures, CMS estimates that it would take hospitals 12 hours, translating to a cost of $1,017.24, to comply with these requirements. Specifically, the agency estimates that hospitals will need four hours to compile and post charge data for all items and services and eight hours to identify the 300 shoppable services and their corresponding ancillary services, collate the charge data, create a consumer-friendly approach to displaying the data, and post it on their websites. CMS has grossly underestimated the administrative and financial burdens associated with this proposal. As outlined in prior sections of this comment letter, IRFs in particular would likely need to post patient-specific, payer-negotiated rates, which results in a significantly
In-patient rehab recommended over nursing homes for stroke rehab,” American Heart Association/American Stroke Association Scientific Statement, “ May 4, 2016, available at http://newsroom.heart.org/news/in-patient-rehabrecommended-over-nursing-homes-for-stroke-rehab. See also AHA/ASA, GUIDELINES FOR ADULT STROKE REHABILITATION AND RECOVERY: A GUIDELINE FOR HEALTHCARE PROFESSIONALS FROM THE AMERICAN HEART ASSOCIATION/AMERICAN STROKE ASSOCIATION (2016), available at http://stroke.ahajournals.org/.
AMRPA Magazine / November 2019 51
higher volume of information to organize, post and update. CMS has also failed to take into account the resources – in terms of both time and staff – that would be required to build or purchase the “consumer friendly” interfaces required under this proposal. Perhaps most alarmingly, this proposal would likely require IRFs and other hospitals to shift resources away from ongoing efforts to meaningfully inform patients about their healthcare service costs and patient liability, and instead focus on compliance with new regulatory requirements that would not result in helpful price data for patients. II. L egal and Policy Arguments Compel Withdrawal of CMS’ Transparency Proposal A. CMS Proposal Exceeds the Agency’s Regulatory Authority In addition to the aforementioned implementationrelated concerns, AMRPA concurs with other hospital organizations in concluding that CMS lacks the legal authority to require hospitals to make public payerspecific negotiated charges. While AMRPA understands that CMS seeks to implement Section 2718(e) of the Public Health Service Act’s (PHSA) requirement that hospitals make public a list of their “standard charges for items and services,” we believe that the proposed definition is not a reasonable interpretation of this term. Instead, AMRPA finds that the term “standard charge” has been interpreted to mean a hospital’s usual or customary charge – found in the hospitals’ chargemaster. In the proposed rule, however, CMS seeks to require hospitals to post payer-specific charges, and in the case of IRFs, potentially patient-specific charges negotiated with various payers. AMRPA believes that this proposal is therefore an unreasonable interpretation of the authority provided to CMS under the PHSA. For these same reasons, the proposal also likely violates the Administrative Procedure Act (APA), as it is unreasonable for CMS to interpret “standard” charges as payer-specific charges, which by definition vary by year and across payers/plans. B. P ublic Posting of Payer-Specific Negotiated Charges Would Have Unintended Consequences on Patient Access & Market Competition Beyond the serious legal issues raised by this proposal, AMRPA also notes that this proposal could potentially result in the opposite of its intended impact on competitive pricing and value-driven care decisions. In fact, the Federal Trade Commission (FTC) has warned numerous times that the disclosure of competitively sensitive information, specifically included health plans’ contractual terms,8 can “facilitate collusion, raise prices and harm…patients….”9 The FTC has taken a position similar to the one urged by AMRPA, calling for transparency efforts to be sensibly limited to “predicted
8
FTC Letter to Hon. Joe Hoppe & Hon. Melissa Hortman, Jun. 29, 2015.
9
FTC Letter to the Hon. Nellie Pou, Apr. 17, 2001.
10
Id.
52 AMRPA Magazine / November 2019
out-of-pocket expenses, co-pays, and quality and performance comparisons of plans or providers”10 – information that AMRPA believes will meaningfully inform patients with relevant data for their treatment decisions. In contrast, the current and overly broad proposal will actually have a negative effect on market competition, without providing patients with the type of information that can be effectively applied when making decisions on (what AMRPA views as) truly shoppable services. III. Overall Recommendation In all, AMRPA supports efforts to educate consumers and implement much-needed improvements to pricing transparency throughout the healthcare system. However, CMS’ proposed approach would not give patients the information they need to make informed health decisions (such as their own financial liability for services, rather than the total cost), yet would introduce significant additional administrative and financial burdens for the hospital industry. AMRPA therefore urges CMS to withdraw this proposal in its entirety and instead engage in a collaborative effort with hospital stakeholders to identify ways to more effectively provide patients with meaningful information about their actual anticipated costs. AMRPA also reiterates that this proposal is particularly misplaced when applied to the IRF sector. With IRFs often engaging in patient-specific, payer-negotiated rates, the standard posting charge would: (1) result in IRFs being required to post charges that are not “standard” across their patient population, and (2) require IRFs to publish a substantially greater volume of data compared to other hospitals. Furthermore, as required by Medicare regulations, IRFs must engage in extensive pre- and post-admission evaluations to ensure that the services provided by the IRFs are specifically tailored to improve patients’ recovery, outcomes and independence. In IRFs, rarely are the services provided to any two patients the same, and never would a patient be admitted to an IRF for just one service. Simply put, IRF services are not “shoppable,” and stand in sharp contrast to the types of services described in the proposed rule – such as laboratory services – that are not patient-tailored and can be provided in a number of hospital settings. Given that IRFs are already arguably the most regulated entities among providers participating in the Medicare program, these additional burdens would pose a significant threat to IRF operations and to patients’ continued access to critical inpatient rehabilitation services. Lastly, AMRPA has previously provided CMS with specific recommendations to address this issue, such as focusing efforts to directly communicate cost-sharing arrangements to beneficiaries so that they fully understand their liabilities. AMRPA stands ready to work with CMS to identify and implement alternative approaches that will achieve the desired goals of improving price transparency while
minimizing provider burden, in line with the goals of the Administration’s other initiatives. *** AMRPA welcomes continued opportunities to collaborate with the Department of Health and Human Services (HHS) and CMS on these matters. If you have any questions about AMRPA’s recommendations, please contact Kate Beller, J.D., AMRPA Executive Vice President for Government Relations and Policy Development (kbeller@amrpa.org / 202-207-1132). Sincerely,
Richard Kathrins, Ph.D. Chair, AMRPA Board of Directors President and CEO Bacharach Institute for Rehabilitation
Mark J. Tarr Chair, AMRPA Regulatory and Legislative Policy Committee President and Chief Executive Officer, Encompass Health AMRPA__7_312x4_75_1907_F6.qxp 7/30/19 1:18 PM Page 1
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