August 29, Submitted Electronically

Transcription

1 August 29, 2012 Ms. Marilyn Tavenner Acting Administrator Centers for Medicare & Medicaid Services Department of Health and Human Services Attention: CMS-1358-P P.O. Box 8016 Baltimore, MD Submitted Electronically RE: CMS-1358-P Medicare Program; Home Health Prospective Payment System Rates Update for Calendar Year 2013, Hospice Quality Reporting Requirements, and Survey and Enforcement Requirements for Home Health Agencies Dear Ms. Tavenner: On behalf of the American Physical Therapy Association (APTA) and its 82,000 member physical therapists, physical therapist assistants, and students of physical therapy, I would like to submit the following comments to you regarding the Medicare Home Health Prospective Payment System (HH PPS) proposed rule for Calendar Year (CY) Physical therapy is one of the qualifying services under the home health benefit and comprises a large portion of the therapy furnished to patients in the home health setting. Therefore, we are very interested in the proposed policies contained within this rulemaking and the impact they will have on our membership and the patients they serve. In the home health setting, physical therapists provide physical therapy services to patients through a plan of care to engage and optimize the patient s participation in achieving shared goals of improved functional performance, reduced risk of injurious falls, and reduced risk of acute hospitalization thereby promoting long-term health and wellness. Physical therapists provide an examination that includes the history, systems review, and tests and measures to determine the patient s therapeutic, rehabilitative, and functional status and any environmental factors that may impact the patient s activity and/or participation. Through the evaluative process, the physical therapist will develop a comprehensive plan of care to achieve the goals and outcomes of improved function. The physical therapist also instructs patients and caregivers in areas that will help to address specific impairments, activity limitations, participation restrictions, and environmental factors. This may include instruction in the use and performance of therapeutic exercises, functional activities and assistive or adaptive devices, including prosthetics and orthotics. Additionally, the

2 Page 2 of 11 physical therapist determines the priority needs, initiates the physical therapy program and communicates with other personnel and caregivers to ensure that there is adherence to the home program. Since the implementation of the HH PPS and OASIS, APTA has worked diligently to ensure that CMS has a comprehensive picture of the services that physical therapists provide under the Medicare home health benefit. APTA has also undertaken significant educational outreach efforts to ensure that physical therapists and physical therapists assistants understand how to comply with Medicare home health laws and regulations. In recent years, we have worked extensively with CMS on the implementation of OASIS C, the regression equation model for home health therapy threshold levels, and therapy coverage requirements. While we appreciate the amenable spirit of CMS to define the role of therapy and utilization of these services throughout the home health episode of care, we believe that there are still several aspects of the HH PPS that can be revised to better reflect the role of physical therapists in home health as well as bolster clinically appropriate practice patterns that improve quality of care and lower growth in expenditures. APTA is very excited to work with the Agency as it seeks to refine and finalize the policies set forth in this and future proposed rulemaking. With this in mind, our comments address the following areas: I. Case-mix Measurement II. Payment Update and Quality Reporting III. Home Health Face to Face Encounter IV. Therapy Coverage Requirements V. Home Health Study and Report VI. ICD-10 Transitions VII. Home Health Agency Survey and Enforcement Requirements I. Case-Mix Measurement CMS latest analysis indicates that there was a 1 percent increase in the average case-mix weight from The Agency also noted an increase in the reporting of secondary diagnoses on OASIS from which contributed to the growth in total case-mix. CMS looked at the change in distribution of episodes by number of therapy visits from and found that the percentage of non-therapy episodes decreased by 1.56 percentage points and the percentage of episodes with therapy increased at all levels of therapy, which also contributed to overall growth of total case-mix between There was also a continued increase in the percentage of episodes with and 20+ therapy visits. CMS also discusses its most up-to-date analysis of real and nominal case-mix growth. The results were consistent with past results in previous PPS rules. Most case-mix changes are due to improved coding and practice changes, but CMS does still attribute some growth to behavioral

3 Page 3 of 11 changes such as increased use of high therapy treatment plans associated with policies regarding payment for therapy visit thresholds. In the CY 2012 proposed rule, CMS determined that there was percent nominal case-mix change from Therefore, CMS finalized a 3.79 percent payment reduction to the national standardized 60-day episode rates for nominal case-mix change for CY 2012 and a 1.32 percent payment reduction in CY2013. In its latest analysis, CMS determined that there was a percent nominal case-mix change from Therefore, to account for this change, CMS estimated that a 2.18 percent reduction was necessary for CY However, CMS proposes to move forward with the 1.32 percent payment reduction and will continue to monitor and analyze data regarding growth in real and nominal case-mix growth for refinements in the future. APTA commends CMS on its continued analysis of the case-mix growth and we share your commitment to ensuring that home health payments are accurate and are not unduly influenced by practices not associated with changes in the patient s condition. We particularly appreciate CMS acknowledgement of improved coding practices. The involvement of the physical therapist has enhanced the functional component of the comprehensive assessment through gathering observational data and considering safety factors in determining patient ability to carry out Activities of Daily Living and Individual Activities of Daily Living (ADL/IADL). As a result of this more collaborative and critical assessment, the Home Health Resource Groups (HHRG) tend to be higher, thus affecting the case-mix weights. We believe that this improved accuracy and educational outreach has, in large part, led to coding behavior changes that CMS has highlighted in its analysis. APTA strongly recommends that CMS find alternative ways to account for these nominal case-mix changes that do not impose further cuts to the home health PPS. In looking at alternatives, APTA urges CMS to explore its program integrity efforts to combat fraud, waste and abuse under the Medicare home health benefit. We believe that the Agency has made real progress with the implementation of the physician face to face requirement, the tightening of regulations to better define skilled care and in its collaborations with the Department of Justice (DOJ) and the Office of the Inspector General (OIG) to root out and prosecute individuals who have greatly profited from deception of the Medicare program. These efforts put the focus on eliminating the bad actors that are truly defrauding the Medicare system and do not penalize therapists and home health agencies (HHAs) who provide quality, medically necessary services to Medicare beneficiaries in their homes. II. Payment Update and Quality Reporting CMS will continue the reporting of home health quality measures through OASIS, and HHAs that fail to meet quality reporting requirements will receive a 2 percent reduction to HHMB increase. CMS has proposed to delay the implementation of claims-based hospitalization measures due to technical issues with the Home Health Compare files; this delay pertains to both

4 Page 4 of 11 the Emergency Department Use without Hospitalization and Acute Care Hospitalization measures. APTA commends the Agency on its continued commitment to implement a robust and meaningful quality reporting and performance program under the HH PPS. We are committed to encouraging physical therapists to participate in quality improvement and patient safety programs that are implemented through the Affordable Care Act (ACA). We believe home health has been a longstanding leader in efforts to improve quality and outcomes. Therefore, we support the continuation of reporting home health quality measures through OASIS. Secondly, we encourage CMS to continue with implementation of the hospitalization measures once the technical issues are resolved. As CMS moves forward with the development and implementation of home health quality measures, APTA encourages CMS to ensure that measures are aligned with current measures under the Inpatient Prospective Payment System. Specifically, we ask that CMS apply consistent measures regarding emergency department use and readmissions. We believe the agency should ensure that the same criteria considered under the home health quality reporting program is consistent with measures being reported in the inpatient hospital. We believe that this standardization will allow HHAs and hospitals better coordinate care while allowing CMS better latitude to more accurately assess the impact of quality reporting. Secondly, we request that CMS provide additional guidance to home health providers regarding what constitutes an admission to the acute care hospital from the home health setting. Currently, home health providers are experiencing difficulties in distinguishing between hospital observation periods and admissions. Patients are being held in observation status for up to 16 days. These long observation periods inhibit quality of care, diminish the patient benefit and make it difficult for HHAs to accurately report quality measures regarding readmissions. We are aware that a request for comments specific to this issue was included in the 2013 Outpatient Prospective Payment System proposed rule and we strongly urge CMS to ensure that the information gathered from the NPRM is taken into consideration for its effects on home health quality scores related to admissions as well as implications for determining number of visits for purposes of the functional reassessment. Lastly, APTA commends CMS on the continued implementation of the policy finalized in the CY 2012 HH PPS rule to use measures derived from Medicare claims data to measure home health quality. We believe that using measures derived from Medicare claims data provides more accurate information than solely relying on OASIS data. This policy allows CMS to properly assess the issues previously discussed regarding hospital admissions as this information is not always captured though OASIS. III. Home Health Face to Face Encounter CMS proposes to modify the physician face to face requirement to allow a nonphysician practitioner (NPP) in an acute or post-acute facility to perform the face to face encounter in

5 Page 5 of 11 collaboration or under the supervision of the physician who has privileges and cared for the patient in the acute or post-acute facility who can then inform the certifying physician of the patient s homebound status and need for skilled services. APTA applauds CMS on this proposal to provide more flexibility in the physician face to face requirement and we urge CMS to finalize this policy. IV. Therapy Coverage Requirements In the proposed rule, CMS addresses issues that still exist regarding the functional reassessment at the 13 th and 19 th therapy visit. The first issue involves the timing of when the resumption of coverage occurs after the qualified therapist misses one of the required 13 th /19 th or at least once every 30 days reassessment visits. Currently, when a therapist misses one of the required reassessments, coverage resumes after the therapist completes the reassessment. The second issue is regarding patients receiving more than one therapy discipline (PT, OT, or SLP) during the episode of care and the interruption in payment for all therapies if one therapy fails to complete the required reassessment. Currently, if one required reassessment is missed for any one of the therapy disciplines (PT, OT, or SLP); the therapy visits for all disciplines are not covered until the defunct therapy completes its required reassessment. To address comments regarding the unfair penalization of these policies, CMS proposes: (1) that if a qualified therapist missed a reassessment, therapy coverage would resume with the visit during which the therapist completed the late reassessment, not the visit after the therapist completed the reassessment and (2) that in cases where multiple therapy disciplines are involved, if the required reassessment visit was missed for any one of the therapy disciplines, therapy payment coverage would only cease for that therapy discipline. So as long as the therapy reassessments were completed in the mandated timeframe for the other therapy disciplines, payment for therapy services would continue to be covered for those therapy disciplines. In regards to when therapy reassessments are to be conducted, CMS clarifies that in cases where the patient is receiving multiple therapies, the qualified therapist could complete the reassessment visits during the 11 th, 12 th or 13 th visit for the required 13 th visit reassessment and the 17 th, 18 th, or 19 th visit for the required 19 th visit reassessment. Rescission of current therapy thresholds and development of a new therapy payment system Since the implementation of the therapy coverage requirements, APTA has actively sought to educate our membership to ensure compliance as well as seek guidance from CMS. While we appreciate CMS efforts to provide more flexibility with the coverage of missed visits and the timing of the functional reassessment, there are still significant administrative burdens associated with completing the functional reassessment that we believe will not be remedied by the proposals in this rulemaking. APTA believes that therapy frequency and duration should be based solely on the needs of the patient, and any further attempts to curb overutilization that involves the promulgation of

6 Page 6 of 11 coverage policies based upon the number of therapy visits furnished is a step in the wrong direction. Therefore, the above proposal to revise the current therapy coverage requirements is unproductive and continues to create incentives for financial benchmarks to inappropriately influence clinical determinations regarding the provision of care. In the long-term, we believe that CMS should start to develop an alternative therapy payment system under the HH PPS that will recognize the clinical reasoning and decision-making of the therapist s evaluative process in addition to planned interventions. This payment system should rely on a classification system based on patient characteristics, condition and complexity for the payment of therapy services, promote the use of an assessment tool and quality measures that have specific applicability to physical therapy services provided in the home health setting, and use electronic health records that include specific components for the documentation of therapy services. Participation in national registries to provide essential data to improve the payment model over time is also essential. Accordingly, we recommend that CMS convene a technical expert panel (TEP) to begin the work of developing an alternative payment system for therapy services under the Medicare home health benefit. APTA is eager to lend our resources and member subject-matter experts to aid in this important undertaking and to serve on the panel. APTA offers the following recommendations specific to the proposals contained in this rulemaking. Resumption of therapy coverage and the effect of fraudulent behavior on nominal case-mix APTA supports CMS proposed revision to state that if a qualified therapist missed a reassessment visit, therapy coverage would resume with the visit during which the qualified therapist completed the late reassessment, not the visit after the therapist completed the late reassessment. For the reasons that CMS has articulated, we believe that this visit should be covered as the therapist does provide skilled interventions to the patient during this visit that meet the Medicare reasonable and necessary criteria. Although, further analysis of this proposal does raise questions of whether CMS will continue its current policy to cover the 13 th and 19 th therapy visits in addition to the therapy visits in which the missed functional reassessment is completed. Therefore, we recommend that CMS adopt this proposal in the final rule with a clarification that in single and multiple therapy cases the 13 th /19 th visits will be covered for therapy discipline(s) that are in compliance with the functional reassessment requirement. We strongly believe that both visits (the 13 th /19 th and the visit in which the functional reassessment is completed) should be covered for the reasons CMS has articulated in this proposed rule. In each of these visits, the qualified professional is providing skilled therapy services that are covered by the Medicare home health benefit.

7 Page 7 of 11 While we wholeheartedly agree with CMS that claims should be monitored for unintended consequences as a result of this proposal, such as abusive or fraudulent billing practices, we are concerned about assessing this claims data for its financial impact on payment. We strongly urge CMS to utilize any adverse data subsequent to this policy in a manner that does not directly result in reductions of the national 60-day payment episode nominal case-mix for therapy services. We are acutely aware that similar information has been used for this purpose in the past, such as the 2012 Final HH PPS rule that increased case-mix weights for episodes with 0 to 5 therapy visits. This type of policy has a detrimental effect on access to therapy services for patients who require physical therapy services to restore their functional mobility. We believe any abuses that are realized as a result of CMS monitoring should be targeted at the bad actor(s) and not used as justification for payment policies that have broad application to all home health providers. Coverage of compliant therapy disciplines and the effect of visit ranges on care coordination APTA appreciates and supports the adoption of CMS proposal to continue coverage for the therapy disciplines that remain in compliance with the 13 th /19 th or every 30 days functional reassessment requirement in episodes of care in which multiple therapy disciplines are involved. Unfortunately, we believe that the flexibilities intended by this proposal are counterbalanced by CMS third proposal to impose a range of visits (11-13 or 17-19) of when the functional reassessment must be completed in multiple therapy cases. We strongly urge CMS to rescind its proposal to set forth ranges of visits of when the functional reassessment must be completed in multiple therapy cases and to maintain the current close to language. We believe that by establishing visit ranges, CMS will pose undue hardships on home health agencies (HHAs) and therapists to comply in instances where patients are receiving other services that prohibit them from being able to receive therapy on their planned visit. For example, a patient with cancer receiving chemotherapy may experience significant side effects associated with their treatments that leaves them physically incapable of tolerating their planned visit in which the functional reassessment would be completed. Therefore, with the current policy of close to, the therapists could plan to complete the functional reassessments the week before the patient s chemotherapy which may fall on the patient s 10 th therapy visit and still remain compliant with the functional reassessment requirement. If the proposed policy is finalized, therapists and HHAs would lose this flexibility. In addition, the proposed ranges of visits causes increased administrative burden on therapists and HHAs to coordinate therapy visits across disciplines. While APTA understands the structure of the HH PPS which pays HHAs a pre-determined amount for the combined therapies (PT, OT and SLP), we respectfully assert the fact that physical therapy is a distinct and independent service and therefore provided under separate plan of care developed by the physical therapist in consultation with the physician. It takes considerable coordination to determine the manner in which each therapy discipline plans to provide their respective interventions to the patient. Therefore, the perceived flexibilities of the ranges of visits cause an even greater regulatory burden on therapy providers to count visits to ensure that all three therapies have completed the

8 Page 8 of 11 functional reassessment within the proposed visit ranges. Furthermore, it will take considerable time and resources for electronic health record (EHR) vendors to convert their software from the current close to language to comply with the proposed ranges. Efficacy of proposed visit ranges on patient access to therapy services We urge CMS to consider the unintended effect that the proposed visit ranges may have on patient access to therapy services in the instances we have articulated above when patients are receiving other treatments that may prevent them from being able to receive the functional reassessment on one of the mandated visits. The lack of access to skilled therapy services may result in further deterioration or loss of progression in the patient s condition. CMS should also consider the effect of this proposed policy on small and rural HHAs that do not possess sophisticated EHRs or electronic software but instead still rely on a paper-based system to record and document therapy visits. These HHAs are already posed with limited resources to provide therapy services to patients and we believe that the adoption of this policy will only exacerbate their existing patient access issues. For these additional reasons, we believe maintaining the current close to language is advisable. Interim recommendation to alleviate burdens associated with the current policy While APTA believes the concept of the functional reassessment is ideal, tying this policy to arbitrary visits associated with the payment thresholds is problematic. The current policy is not clinically based and does not add value, improve quality or enhance patient care. In fact, in our analysis of the data provided by CMS since the implementation of this policy, there has been no realized positive impact on controlling costs and curbing overutilization of therapy services. Unfortunately, the therapy coverage requirements have only contributed to increased administrative burdens and confusion on how to comply with complicated regulatory provisions. As articulated above, we strongly believe that CMS should ultimately develop and implement a new therapy payment system for the HH PPS, but in the interim we recommend that the Agency remove the requirement that the functional reassessment be completed by the 13 th and 19 th visit and simply, return to its previous policy that a qualified therapist perform the needed therapy services, assess the patient, measure progress, and document progress towards goals at least once every 30 days during a therapy s patient course of treatment. We believe that this recommendation will relieve the current administrative burdens posed by the current policy while ensuring that the patient receives clinically appropriate therapy services by a qualified therapist. We strongly believe that the clinical judgment and expertise of the qualified therapist should be the sole deciding factor when determining when to perform a functional reassessment of the patient. V. Home Health Study and Report To address issues regarding access to home health and cherry picking, the Affordable Care Act mandated a study on home health agency costs involved with providing access to care to low-

9 Page 9 of 11 income Medicare beneficiaries or in underserved areas as well as with high levels of severity. CMS awarded a contract in the fall of 2010 to conduct exploratory work for the study. This contract resulted in an extensive literature search of HH PPS vulnerabilities and access issues along with open door forums and technical expert panels. In September 2011, CMS awarded a study contract to develop an analytic plan, perform detailed analysis and recommendations. CMS is at the beginning of this contact and plans to release more information at a later date. The final report is due to Congress no later than March 1, Congress also gave CMS the authority to conduct a separate demonstration to test recommendations stemming from the report. APTA strongly believes that physical therapists and other home health clinicians should be active participants in the collection and analysis of data gathering in the study. APTA is more than willing to provide CMS with physical therapists who can serve in this capacity as the Agency begins its work. Therefore, we recommend that CMS provide updates to the stakeholder community on the plan and design of the study as they are available in a similar manner to the Special Open Door Forum that was held earlier this year regarding the mandate to conduct the study. VI. ICD-10 Transitions CMS states that it will include an update in the final rule regarding the impact of the delay of ICD-10 compliance date to October 2014 on the home health transition plan. CMS continues work with the HH PPS Grouper maintenance contractor to revise the HH PPS Grouper to accommodate ICD-10. CMS plans to publish a draft list of ICD-10 codes by summer of CMS proposes two changes to HH PPS Grouper. First, to restrict M1024 to only permit fracture (V code) diagnoses codes which according to ICD-10 cannot be reported in a home health setting as a primary or secondary diagnosis. Secondly, CMS proposes to permit equivalent scoring in the HHRG logic when the Diabetes, Skin 1 or Neuro 1 codes are submitted immediately following the V-codes in the M1020 position without requiring utilization of the payment diagnosis field. APTA applauds CMS for moving forward with the transition to ICD-10. We believe that transparency, significant lead time and adequate training and education are integral to ensuring a successful and smooth transition to ICD-10. APTA has been committed to providing our members resources to aid in implementation of ICD-10 since its inception as we believe that full implementation will result in improved coding accuracy and efficiencies in care. With this in mind, we are acutely aware that it will take several steps on the part of physical therapists, home health agencies and other providers to prepare for this transition. It will be important to determine which staff should be trained and the level of training required. Also, electronic medical records and billing software will require significant modifications and resources. Therefore, we strongly encourage CMS to continue its transition efforts under the HH PPS.

10 Page 10 of 11 VII. Home Health Agency Survey and Enforcement Requirements In the proposed rule, CMS lays out extensive provisions that would add new sections to federal regulations regarding the survey and certification guidance and enforcement of compliance standards for HHAs that are not in substantial compliance with Medicare participation requirements. The proposed additions include the standards for performance of standard, partial extended and extended surveys; surveyor disqualifications; the process for Informal Dispute Resolutions (IDR); factors for determining sanctions for violations of survey requirements; grounds for termination of HHAs agreements for non-compliance; and HHA appeals rights. In addition, CMS seeks comments regarding additional public notice. Specifically, when a suspension of payment for a new admission and new payment episode or a civil money penalty is imposed, should this be done through a public notice? APTA appreciates CMS efforts to clarify the survey and certification requirements. We believe that home health agencies should have clear and consistent guidance to ensure full compliance with the enforcement requirements. Therefore, any steps by the Agency to make this process more standardized across state surveyors and transparent to home health providers is favorable and should be adopted into the Medicare Conditions of Participation (COP) for HHAs. However, we recommend that HHAs have the opportunity to review all adverse decisions and exhaust their appeal rights before such information is released through public notice. We strongly believe that any publication of suspensions or the imposition of civil money penalties without adequate notice and opportunity to appeal by home health providers violates the basic tenets of due process and places HHAs at a disadvantage of receiving an unfavorable rating before the agency has the opportunity to appeal and possibly reverse the decision or reduce the penalty assessed. Conclusion APTA thanks CMS for the opportunity to comment on the Home Health Prospective Payment System Rate Update Proposed Rule (CY 2013), and we look forward to working with the agency to craft patient-centered reimbursement policies that reflect quality health care for all Medicare beneficiaries. If you have any questions regarding our comments, please contact Roshunda Drummond-Dye, Director, Regulatory Affairs at (703) or roshundadrummonddye@apta.org. Sincerely,

11 Page 11 of 11 Paul Rockar, Jr. PT, DPT, MS President PR: rdd