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Center Comments on Proposed Medicare Home Health Rules || Center for Medicare Advocacy

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August 27, 2018

Facilities for Medicare & Medicaid Providers
Division of Health and Human Providers
Consideration: CMS-1689-P
P.O. Field 8013
Baltimore, Maryland  21244-8013

Submitted electronically to:

Re:  CMS-1689-P; Federal Register, Quantity 83, No. 134 (July 12, 2018)

The Center for Medicare Advocacy (the Center) supplies these feedback relating to CMS-1689-P and the impression of the proposed rule on entry to residence well being care for weak older and disabled individuals.

The Center, based in 1986, is a nationwide, non-profit regulation group that works to make sure truthful entry to Medicare and high quality healthcare. The group supplies schooling, authorized help, analysis and evaluation on behalf of older individuals and other people with disabilities, notably these with long-term circumstances. The Center’s coverage positions are based mostly on its expertise aiding hundreds of people and their households with Medicare protection and attraction points. Moreover, when crucial, the Center offers beneficiaries with particular person and sophistication motion illustration to deal with broad patterns and practices that inappropriately deny entry to Medicare and mandatory care. The Center additionally participated on the Technical Professional Panel convened in February 2018 to debate points associated to this proposed rule.

The proposed rule purports “to better align payment with patient care needs and better ensure that clinically complex and ill beneficiaries have adequate access to home health care.” (FR 32380-32381). Sadly, the Center believes the proposed cost mannequin will additional diminish entry to care, notably for individuals with complicated, longer-term and persistent circumstances – people who find themselves already unable to entry the care they want. Merely put, the Affected person Pushed Groupings Mannequin (PDGM) shouldn’t be guided by the wants of sufferers. It can exacerbate an present disaster in entry to house care for individuals most in want.

Over current many years, Medicare cost incentives, not affected person wants, have pushed the supply of care as suppliers search to maximise revenue. Thus, a brand new cost system based mostly on prior care supply patterns won’t be aligned with precise affected person wants.  The info won’t present what sufferers actually need, solely what was delivered because of previous cost incentives.

Home well being care businesses have been inspired by Medicare cost and high quality insurance policies to serve sufferers who will present the best revenue margin, and whose circumstances will enhance, whereas stinting on care to “less profitable” sufferers, with longer-term and persistent circumstances. The proposed guidelines would additional exacerbate this drawback, creating further incentives to offer care to beneficiaries with short-term, enchancment objectives. As lead counsel in Jimmo v. Sebelius, the case that confirmed Medicare determinations ought to flip on the necessity for expert care, not on a person’s capability to enhance, we strenuously object to the PDGM.

Based mostly on our expertise representing hundreds of Medicare house well being sufferers for over 30 years, the Center concludes the proposed rule will end result within the following dangerous penalties:

  • Beneficiaries who weren’t current inpatients and/or want greater than 30 days of residence well being care will expertise even higher issues accessing care than presently.
  • Beneficiaries with longer-term and persistent circumstances who’re unlikely to enhance will proceed to expertise a decline within the availability of Medicare residence care providers.
  • Beneficiaries with hospital statement stays or emergency room visits will expertise a decline in entry to residence well being care.
  • Beneficiaries who want and qualify for Medicare-covered remedy will obtain much less remedy.
  • Beneficiaries with extreme useful impairments and comorbidities may have even larger issues accessing care, as businesses won’t obtain sufficient of a cost increase to offer this care.
  • Home well being aide providers for beneficiaries who aren’t current inpatients will all however disappear.
  • Entry to house well being aide care will proceed its precipitous decline.
  • Home well being businesses will improve affiliations with corporations that present residence well being aide providers on a private-pay foundation.
  • The variety of not-for-profit residence well being businesses will additional decline.
  • Home well being businesses will affiliate with inpatient well being care establishments, and/or establishments will purchase house well being businesses.
  • Inpatient well being care establishments will refer sufferers to affiliated house well being businesses at a higher price.
  • Home well being businesses will solely rent adequate employees to serve “profitable” Medicare beneficiaries – individuals with short-term and post-institutional care wants.
  • Smaller, non-affiliated residence well being businesses will shut or solely take private-pay sufferers.
  • Home well being businesses will proceed to report annualized income of 16-20%[1] whereas the finances impartial program replace is simply 2.1% (FR 32370), whereas beneficiaries go with out care or obtain lower than is ordered and wanted.

Whereas it might be unimaginable to show what number of individuals over the previous many years have been denied entry to the Medicare house well being care for which they qualify beneath the regulation, it isn’t troublesome to determine who these individuals are: People with longer-term and continual circumstances who require expert providers to have the ability to keep their circumstances or sluggish decline. Most frequently, additionally they require and qualify for house well being aides to assist them get away from bed, go to the toilet, gown, eat and take drugs. Such providers allow many people to stay independently in their very own houses. Whereas Medicare regulation covers this care, cost guidelines typically preclude it in follow, as a result of sufferers with longer-term and continual circumstances present businesses with minimal revenue margins, at greatest. The proposed rule will worsen this example and result in a good higher variety of beneficiaries dropping entry to house care for which they qualify beneath the regulation.

Cost Fashions Decide What Care is Offered

Former and present Medicare house well being cost methods, (Interim Perspective Cost System, IPS; 1997-1999 and Potential Cost System, PPS; 2000-present), didn’t change the kind of providers sufferers want, however these cost techniques did change the kind of providers businesses have been prepared to offer. Responding, partially, to issues homebound sufferers confronted in accessing remedy, IPS and PPS offered monetary incentives to ship extra remedy providers. Whereas the previous 20 years present businesses delivered extra remedy providers, the supply of expert nursing providers and residential well being aide providers plummeted. As reported within the 2018 MedPAC report, since 1997, the typical variety of visits per 60-day episode of residence well being care have modified as follows: Expert nursing from 14.1 to 9.four (down 33%); residence well being aides from 13.four to 1.eight (down 87%); remedy from Three.eight to 7.5 (up 49%).[2]

Cost insurance policies drive what care residence well being businesses are prepared to offer, and to which sufferers. Via the IPS and PPS cost insurance policies, Medicare modified supplier conduct and successfully turned the Medicare residence well being protection right into a short-term, acute care profit, regardless of the regulation and Congressional intent to permit protection as long as protection standards are met. The proposed PDGM rule continues this march towards making Medicare a short-term house well being profit, opposite to the regulation.  

Considerably, in 1980 Congress repealed a 100 go to cap and prior hospital or SNF requirement for Medicare residence well being protection. When Congress developed the IPS and the PPS within the 1997 Balanced Finances Act (BBA), it affirmed this Congressional intent, arranging for cost of long run house care, thus making it clear that Medicare house well being protection shouldn’t be meant to be only a brief time period profit. Medicare regulation doesn’t cap affordable and needed residence care, besides for a weekly restrict of as much as 35 hours every week of expert nursing and residential well being aide, mixed. The regulation has no period of time limitation.

For many years, the Center assisted beneficiaries to stay of their houses with vital, Medicare-covered care. These included people like our shopper Mrs. B., who had a number of sclerosis, lived alone, and wanted some expert nursing and remedy and residential well being aides. At present, cost insurance policies have made it virtually unimaginable for individuals like Mrs. B to acquire the care they should keep residence. Particularly, the aides that helped her with key private care is now not often obtainable by means of Medicare. Repeatedly, sufferers are informed they will solely obtain an aide 1-Three occasions per week and often solely for bathing. More and more, sufferers are additionally advised, nevertheless, that they will obtain the private care they want from a parallel, typically affiliated, proprietary entity.  This example places sufferers who keep at house nonetheless in jeopardy, and forces others into establishments. The shortage of entry to house well being aides is pushed by the present cost system that doesn’t improve the episodic cost for offering aides. The proposed cost rule will proceed and exacerbate this silly mannequin, which jeopardizes sufferers and results in the necessity for costlier care.

The Proposed Rule Will Additional Outline and Restrict Care

When IPS and PPS ushered within the idea of a “bundled payment” for all providers, the thought was that the cost “bundle” was statistically structured to stability the price of offering care for much less useful resource intense sufferers with greater useful resource intense sufferers. Thus, care can be offered for everybody who certified. Such a stability didn’t happen. The final 20 years has proven that businesses largely tailored their companies to serve the least resource-intense sufferers, retaining the complete bundled cost, and refusing to serve greater resource-intense sufferers.  For instance, we just lately spoke with a beneficiary, who was accepted by a house well being company for a weekly hour of bodily remedy. The company can be paid the Medicare bundled cost for providers. With a view to obtain a second hour of bodily remedy, nevertheless, the company stated she must personal pay. That second hour of remedy ought to have been included within the Medicare episodic cost.

Home well being care has turn into a extremely worthwhile enterprise. Ignoring proposals for a cap on business income, to return a number of the common 16.four% annual margin offered over the previous 20 years[3] again to Medicare, CMS has allowed business income on the expense of the general public, whereas probably the most weak Medicare beneficiaries are denied care. Whereas businesses have achieved a mean marginal annual revenue of 16.four%, program large cost updates have been minimal – 2.1% is proposed for 2019 (FR 32370). Certainly, of all of the well being care sectors, residence well being posted the very best buying and selling multiples for mergers and acquisitions in 2016. Buy of businesses elevated eight% in 2015, and “deal value” elevated 121%.[4] Yearly a larger proportion of public funding goes to residence business income and fewer to affected person care. As an alternative of recognizing this as a serious drawback for Medicare, taxpayers, and sufferers, the proposed rule accelerates efforts that ignore Medicare protection legal guidelines and additional the method of turning Medicare house well being protection right into a short-term post-acute care profit.

The Rule Creates Incentives to Serve Publish-Hospital and Brief-Time period Sufferers

The Center reiterates the feedback it filed in 2017 relating to the proposed Home Health Groupings Mannequin (HHGM). Regrettably, this proposed rule consists of two further, notably vital cost incentives that that may drive businesses to offer care to individuals who have had current inpatient stays and/or sufferers who solely want short-term care. (See cost ratios, FR 32499-32500). Whereas the HHGM consists of a lot smaller cost influences based mostly on useful want degree, medical grouping, and comorbidity group, these further elements add disincentives to serve people who find themselves most in want of care. If businesses are usually not required to serve all Medicare beneficiaries who qualify, as a requirement to take part as a Medicare supplier, businesses will merely analyze the ultimate rule to serve sufferers who assist maximize income. Because the overwhelming majority of businesses are proprietary, they’re compelled to take action. Providers will focus on post-institutional residence care for solely a month. Sufferers who want care for greater than a month and/or who keep away from hospitalizations could have even much less entry to house care.

CMS and MedPAC analyses present a development of accelerating episodes of care that aren’t preceded by  an inpatient keep and take this development to be a “a significant potential for overuse.” (FR 32352) As an alternative, policy-makers ought to acknowledge that deliberate modifications within the supply of care have resulted in much less inpatient stays and extra complicated care offered in outpatient settings. Individuals are being admitted to the hospital for procedures much less typically as increasingly procedures are carried out on an outpatient foundation. They want extra house care, not much less. Additional, offering vital care at residence is usually preferable for sufferers and cheaper for Medicare. As well as, CMS’s so-called “outpatient” statement coverage categorizes an ever-increasing % of hospital sufferers, who would have been thought-about inpatients prior to now, as outpatients. These sufferers can be additional harmed by the proposed cost rule, which can inevitably result in house care suppliers preferring to serve individuals who have had prior inpatient hospital admissions. But these similar sufferers want extra entry to residence care than prior to now since they can’t qualify for Medicare-covered nursing residence care (which requires a previous three-day inpatient hospital keep).

Sufferers who’re capable of keep away from inpatient stays, or who’re categorized as outpatients, shouldn’t have their entry to house care jeopardized by a decrease cost ratio when their care wants are sometimes the identical or extra intense than sufferers who’ve had prior inpatient admissions. The proposed rule’s rationalization that, on common, extra intense assets are wanted post-inpatient is an faulty rule-of-thumb that may hurt many Medicare beneficiaries. The appliance of such non-patient-centered cost guidelines will overpay businesses to underserve too many beneficiaries, notably these with longer-term circumstances

Home well being businesses dedicated to serving individuals who want care for longer-term and persistent circumstances are already penalized by cost disincentives, by means of fashions such because the PPS and HHVBP. They’re additionally punished with decrease high quality scores, since many of those sufferers aren’t capable of enhance they usually face intimidating audits once they present care for “too long”, even when sufferers proceed to qualify for care. As a consequence, businesses are more and more unwilling to offer care for beneficiaries with longer-term and persistent care wants. CMS ought to develop cost fashions and high quality measures that encourage businesses to serve beneficiaries with the best well being challenges, not penalize them. Regrettably, the proposed rule does the other, including additional disincentives to care for sufferers with critical sicknesses and continual circumstances.

Final yr’s residence well being proposed rule gave some consideration to a potential upkeep high quality measure within the house well being worth based mostly buying (HHVBP) mannequin. This yr’s proposed rule doesn’t embrace such a measure to guage how care is offered for individuals with longer-term and persistent circumstances. That is notably troubling since suppliers will quickly be penalized by as much as eight% when they don’t meet objectives for enhancing sufferers’ circumstances. It will create yet one more disincentive to serve people who find themselves not capable of enhance.

CMS Ought to Develop Guidelines With Equal Incentives to Present Care for All Who Qualify Beneath the Regulation

The Center urges CMS to design cost and high quality guidelines that effectuate Medicare protection legal guidelines and encourage suppliers to serve all sufferers The proposed rule, with its 216 classes closely weighted in the direction of offering care for the brief time period is sure to additional exacerbate house care entry issues for people with longer-term and debilitating circumstances. It’s going to inevitably hamper implementation of the Jimmo Settlement, which seeks to open Medicare-coverage for expert upkeep care, and can result in discrimination towards individuals with disabilities. CMS ought to rescind this rule and develop techniques based mostly on particular person practical standing and care wants in order that suppliers are inspired to serve all beneficiaries who qualify for protection underneath the regulation.

Comments Relating to Particular Provisions

III.C.four. CY 2019 Annual Cost Replace (FR 32369)

The Center disagrees with the proposal to scale back the labor-related share from 78.5% to 76.1%, and improve the non-labor-related share from 21.5% to 23.9%; such a change will end in much less care for sufferers.

III.E.Three. Outliers – Cost Medical Instance (FR 32377)

The Center commends CMS for together with statements reminding suppliers that Medicare protection turns on the necessity for expert care, not on enchancment. We additionally commend CMS for offering an instance of how an outlier cost might be sought for offering care for sufferers dwelling with vital longer-term and debilitating circumstances together with ALS. We stay involved, nevertheless, that the caps on outlier funds limits the worth of this strategy to opening entry to care for beneficiaries in want. Certainly, the Center recurrently hears from beneficiaries, together with sufferers with ALS, whose conditions intently match these within the proposed rule’s Medical Instance. These sufferers report having been advised by residence well being businesses that “Medicare doesn’t pay for home health aides,” or “Medicare doesn’t pay for maintenance therapy,” or “Medicare doesn’t cover PT for people with ALS,” or “We don’t provide maintenance therapy.” CMS ought to attend to those considerations with a revised rule that addresses the cap on outlier funds and creates equal revenue margins and incentives for offering care for all sufferers who qualify beneath the regulation.

III.F.1. Ideas for enhancing the case-mix adjustment methodology (FR 32380)

CMS ought to thoughtfully develop a number of case-mix changes that won’t depart so many beneficiaries out. “Average” requirements will all the time skew to probably the most worthwhile sufferers for businesses. Additional, the hospital “outpatient” statement phenomenon is actual, rising and have to be critically thought-about in any rule that gives cost incentives based mostly on prior inpatient institutional care. Sufferers in “outpatient” statement standing have already misplaced entry to Medicare expert nursing facility care, they need to not even be put at an obstacle once they search house well being care.

III.F. Determine four (FR 32382)

The Center believes utilizing the time period “Functional Level” with a rating of low-medium-high is complicated. This can confuse suppliers into considering the reference is to low, medium, or excessive practical degree. It might be clearer to confer with this measure as a “Practical Impairment Degree during which case a low, medium, or excessive practical impairment can be correctly indicated.

III.F.12. Impact of 30 Day Cost on Outliers (FR 32421)

The Center is worried that the change to 30 day cost durations would end in four.77% complete HH PPS cost in CY 2019 from the present 2.Three%, thus forcing an adjustment of the fastened greenback loss ratio from .55 to .71 and making it more durable for beneficiaries to acquire outlier providers. We’re additionally involved that the change to 30 day cost durations will ship a further message to businesses that care is predicted to be offered for brief durations of time.

III.G.Three. Modifications to Info Used to Fulfill Documentation of Medicare Eligibility for Home Health Providers (FR 32423)

The rule proposes to permit the house well being company medical document documentation to function the help for residence well being protection. The Center is worried, nevertheless, that the documentation may even be used to deny protection for sufferers that house well being businesses not need to serve. It seems that the certifying doctor is required to signal and date the data of the house well being company after which the house well being company data should substantiate eligibility. Sadly, it isn’t unusual in our follow to evaluate medical data that merely don’t adequately mirror the care that was truly offered. 

Additional, given the truth that a busy doctor doesn’t have the time to learn lots of of detailed residence well being company data, the house well being company might make unsubstantiated claims a few affected person not being homebound or not needing expert care. This might permit residence well being businesses an excessive amount of management over Medicare protection, and a chance to override the doctor’s opinion. The Center typically hears from sufferers who’ve a physician’s order for care that the supplier has lowered or discontinued. As a consequence, beneficiaries are pressured to settle for much less care for worry the company will in any other case not present any providers in any respect.

If the medical report is to be allowed to face on its personal, it must be solely to verify protection is on the market, to not deny protection.

III.G.four. Modifications to Eligibility Certification and Recertification (FR 32424)

The Center agrees with the proposal to get rid of the regulatory requirement for the certifying doctor to estimate how for much longer expert providers can be wanted.

III.H. Distant Affected person Monitoring (FR 32425)

The Center agrees that Distant Affected person Monitoring shouldn’t be used instead for in-person house well being care, however acknowledges it may be useful to reinforce care for some sufferers. CMS ought to monitor using distant monitoring to make sure it doesn’t, in apply, scale back entry to mandatory in-person care. CMS also needs to make clear that if the distant service is nursing, it can assist fulfill the expert nursing requirement to set off Medicare protection for different coated residence well being providers resembling house well being aides and occupational remedy.

IV.A. and B. Home Health Worth Based mostly Buying (HHVBP) Mannequin (FR 32426)

The Center strongly objects to any high quality measures based mostly largely on enchancment and reiterates that businesses have to be equally inspired and rewarded for serving beneficiaries who can’t enhance, however want expert care to take care of or sluggish decline of their circumstances. High quality measures that focus, or present higher weight, to care for sufferers who enhance are dangerous to beneficiaries as they create a disincentive for suppliers to confess sufferers with circumstances that won’t enhance. Additional, an company with a five-star score underneath present measures might be a horrible match for a person with a longer-term or debilitating situation since five-star businesses will solely have been measured on how they care for sufferers who enhance.

We hope the “Total Normalized Composite Change” requirements that CMS proposes to exchange three of the development high quality measures is a step in the fitting path. We hope the Rule’s expressed objective that “all HHAs provide high quality care and we believe that awarding more points for achievement than for improvement … would support that goal” (FR 32425), will assist improve entry and high quality of care for all beneficiaries.

CMS should additional design and implement high quality measures that equally commend high quality care, and sanction poor high quality, to take care of a person’s situation or sluggish decline, simply because it does for enchancment providers. Extra have to be finished to make sure equal high quality measures are created, amplified and enforced.

IV.B.Three. Reweighting the OASIS-Based mostly, Claims-Based mostly, and HHCAHPS Measures (FR 32431)

HHCAHPS measures that contemplate affected person and caregiver experiences shouldn’t be weighted at a decrease proportion than the OASIS-based and claims-based measures, even by 5%. To take action would ship a message to house well being businesses that the affected person expertise is much less essential than the opposite measures.

V. Proposed Updates to the Home Health High quality Reporting Program (HHQRP) (FR 32439)

CMS states, “[a]mong our core objectives, we aim to improve health outcomes, attain health equity for all beneficiaries, and ensure that complex patients as well as those with social risk factors receive excellent care.” (FR 32439). The Center believes that till such time as value-based program measures choice, area weighting, efficiency scoring, and cost methodology accounts equally for all beneficiaries, together with individuals with debilitating circumstances, social danger elements and well being elements, these core aims will fall in need of their laudatory objectives.


The Center urges CMS to put the pursuits of all Medicare beneficiaries on the coronary heart of its cost and high quality guidelines. How suppliers receives a commission and measured drives who will get entry to care. Thus, these guidelines should rigorously mirror Medicare protection legal guidelines, and advance Congressional intent. The proposed cost guidelines fall in need of this commonplace. We urge CMS to place these cost guidelines on maintain whereas it considers the collective influence of all residence well being cost guidelines, high quality measures and circumstances of participation necessities. At the moment new guidelines must be proposed that encourage entry to residence well being care for all individuals who qualify underneath the regulation, for all providers coated underneath the regulation.

We recognize the chance to submit these feedback on behalf of all those that have the authorized proper, and pressing want, to acquire Medicare-covered house well being providers.


Kathleen Holt, M.B.A, J.D.
Affiliate Director/Lawyer

Judith Stein, J.D.
Government Director/Lawyer

For extra info, please contact Kathleen Holt, at or Judith Stein at, or at (860)456-7790.

[1]MedPAC, Report back to the Congress: Medicare Cost Coverage. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. The Care Span Medicare Home Health Cost Reform Might Jeopardize Entry for Clinically Complicated and Socially Weak Sufferers. Health Affairs. June 2014; 952.
[2] MedPAC, Report back to the Congress: Medicare Cost Coverage. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. The Care Span Medicare Home Health Cost Reform Might Jeopardize Entry for Clinically Complicated and Socially Weak Sufferers. Health Affairs. June 2014; 952.
[3] MedPAC, Report back to the Congress: Medicare Cost Coverage. March 2018. Chapter 9. 241-262.
Rosarti, R. Russell, D. Peng, T. The Care Span Medicare Home Health Cost Reform Might Jeopardize Entry for Clinically Complicated and Socially Weak Sufferers. Health Affairs. June 2014; 952.
[4]  Mullaney, T. Home Health Offers Commanded Spectacular Valuations in 2016. Home Health Care Information. January 2017.