NAHC Shares its Outline of Draft Comments on the Medicare Proposed Home Health Rule
August 8, 2014 04:29 PM
NAHC recently shared its draft comments on CMS' proposed home health Medicare rule as a means to help guide other organizations in what NAHC sees as the most crucial issues, to seek additional input into the shape and scope of the comments, and as a basis for comments that will eventually be submitted to CMS.
The deadline to submit comments is September 2, 2014.
Below, NAHC's draft comments are reprinted in their entirety.
The Notice of Proposed Rulemaking (NPRM) issued by the Centers for Medicare and Medicaid Services on July 7, 2014 includes a rule change proposals affecting a wide variety of home health regulations. While the NPRM predominately focuses on the 2015 payment rates, it also proposes rule changes or opens a dialogue on the:
physician face-to-face encounter requirements
professional therapy assessment standards
Insulin injection criteria
The following is an outline of the direction NAHC is taking in its formal comments on the NPRM.
2015 Payment Rates
1. The method and process used by CMS in rebasing payment rates continues to raise serious concerns on the impact on care access and the ongoing viability of the home care industry
a. CMS used a flawed methodology in calculating HHA costs
b. CMS should have included all costs currently incurred in the provision of home health services
c. CMS calculated rebased rates in silos, separating episodes from visit rates, rather than as a whole
d. Current data provides better information than the data used by CMS
e. CMS should evaluate alternative options for rebasing
N.B. Essentially, NAHC will be repeating its rebasing concerns as expressed in the 2014 rulemaking in order to preserve rights for potential litigation and to remind CMS of the concerns that had been voiced.
2. The case mix weight recalibrations cannot be sufficiently evaluated as CMS has not provided the full technical information on the nature of the revisions to the weights of the many variables in the model
a. Unlike previously recalibrations, CMS has not provided the technical report on its actions
b. The recalibration of the high volume therapy episodes will lead to financial incentives to increase therapy visits even though CMS indicates that therapy visit volume should have lees impact on the weights
1. CMS should revise the standards used to determine outlier eligibility. For the past few years, the outlier episode O
Outlier episode eligibility standards have resulted spending that is far short of the outlier “budget.” This has deprived HHAs that take on the high cost cases of a level of payment that should have been made. The NPRM forecasts that the spending on outliers will fall short of the budget again in 2015. With the expected oversight on insulin injection-based outlier episodes, it can fairly be assumed that the CMS forecast overstates outlier expenditures.
2. Wage Index
a. NAHC supports a 50/50 blend of current CBSA areas with the new CBSA area as a way of easing the transition to the new geographic area designations
b. NAHC recommends that CMS clarify which areas qualify for the rural add-on on as numerous areas lose rural status under the new CBSAs. In 2006, CMS blended MSA and CBSA regions as part of a comparable wage index transition policy. At that time, CMS applied the rural add-on for both patients residing in a non-MSA and non-CBSA area. In other words, the rural add-on applied in the rural areas under the old MSA designations as well as the new CBSA designations during the transition year.
c. NAHC recommends that CMS replace the wage index system that relies on variations of the hospital wage index currently used with all provider sectors. It fails to account for true wage variations and further fails to provide a level playing standard between health care sectors that employ comparable workers, Another flaw is that it can be very volatile with large decreases and increases in an area index value from one year to the next. If the system is not replaced, all provider sectors should use the same index with the same rights of reclassification, exceptions, and appeals.
Face-to-Face Physician Encounter
a. NAHC wholeheartedly supports the elimination of the narrative requirement in the F2F rule.
i. NAHC recommends that CMS reopen any claim denials that were based on the sufficiency of the narrative and return any monies recouped from HHAs subject to such denials
ii. NAHC recommends that CMS halt any audits on the F2F narratives
2. New requirement on physician documentation
a. NAHC objects to the proposal that the certifying physician have sufficient documentation within his/her files to support the homebound and skilled care need certification
i. HHAs have no control over or knowledge of what a physician has in his/her files
ii. The proof of coverage eligibility is in the record as a whole, not just the MD’s records. No claim determinations should be based on the sufficiency of documentation. Instead, all determinations should be based on whether the full patient record, regardless of who holds it, establishes that the patient is homebound and in need of skilled care.
iii. The proposal suffers from the same problems that afflicted the narrative requirement: “sufficiency” is too subjective and undefinable in an objective manner and an HHA has no control over the documentation, but all of the risk of liability triggered by a claim denial
iv. If CMS intends to maintain this proposal, NAHC recommends that:
1. A definition of “sufficiency” be included
2. HHAs should be permitted and encouraged to submit any and all patient assessments and clinical records that it has to the certifying MD and these records will be part of what would be considered in applying the rule
3. CMS should engage in physician and HHA training on the new requirement and test the outcome of that training before initiating any enforcement of it. Any enforcement should be prospective only.
3. Payment for Physician Certification
a. The proposal to reject claims for payment to physicians for home health certifications in the event that the home health services claim is denied should be withdrawn. Physicians should not be liable in any capacity for the outcome of a home health claim. A certification by the physician should be judged on good faith standards, not the payment determination on the home health claim. In addition, the payment of a certification claim is intended to encompass more than just the act of certification. All the care planning activity will have occurred even if Medicare later finds the home health claim is not covered.
4. Start of Care certifications
a. CMS proposes the clarify that the admission of a patient to a home health agency within the 60-day period of a home health episode where the patient had been discharged with goals met requires a new Start of Care OASIS and new face-to-face encounter documentation. .
b. NAHC recommends that CMS revise its position and require a new face-to-face encounter documentation only when the second admission to home health services is for a wholly different reason than presented in the original admission.
1. The NPRM proposes to phase-in a new requirement for the extent of OASIS submissions. Failure to meet compliance standards results in a 2% reduction in payments for an entire calendar year.
2. NAHC recommends that CMS clarify what is meant by “submission” and explain whether the standard requires both submission and acceptance by the state agency. This would mean that CMS would clarify whether OASIS acceptance must be within the measure timeframe.
3. CMS should provide comprehensive education on the new standard at least six months before it is effective.
1. CMS proposes to modify its current rule requiring professional therapy visits and assessments on the 13th and 19th therapy visit, replacing it with a requirement of a therapy visit and assessment every 14th day.
2. NAHC supports the elimination of the 13th and 19th visit requirements.
3. NAHC recommends that CMS modify its proposal to a 30th day standard and provided a window of flexibility in order to achieve cost efficiencies and conform with the patient’s scheduled needs. The window would allow for the professional assessment 5 days before or after the 30th day.
4. The purpose of the recommended modification is to conform with longstanding professional practice in the outpatient and nursing home settings.
1. NAHC supports the concept of Value-Based Purchasing (VBP) and further supports the use of demonstration projects or pilot programs to evaluate and perfect the application of VBP in home health care.
2. NAHC considers the use of a mandatory and essentially undefined VBP program in 5-8 states with a 5-8% to be premature. The suggested amount of payment withheld places affected HHAs at risk of eliminating resources necessary to achieve high performance and potentially at risk of closure. Cost report data from 2012 shows that 48.1% of all HHAs had Medicare margins of 10% or less with 30.3% experiencing margins below zero. Overall margins for freestanding HHAs in 2012 are 2.9%. Early indications show margin declines in 2013 and 2014.
3. The VBP described in the NPRM falls far short of a design. Before CMS can consider the amount of payment withhold in a VBP pilot program, it must settle on performance measures, risk adjustment model, and incentive payment distribution framework. These elements of a VBP program define the risk faced by providers that must be known before setting a withhold rate. An unreasonable payment withhold runs the risk that HHAs will be left with insufficient resources to achieve the sought after performance. Such an approach creates the risk that overall HHA performance declines from pre-VBP levels and incentive payments are made at performance levels that are below previous averages. VBP should trigger performance improvement not deterioration.
1. NAHC supports the development of reasoned guidelines for determining when a patient is capable of self-injecting insulin. These guidelines should be evidence based and tested in rel-life circumstances rather than in an clinical and practical vacuum.
2. The guidelines should be developed using the National Coverage Determination processes.
3. The guidelines should be applied in a manner that creates presumptive eligibility or ineligibility. However, the patient or HHA should have the opportunity to rebut any presumption of ineligibility prior to a coverage decision. The inaccurate denial of coverage of insulin injections places the life of the beneficiary at risk.